Briggs v. Brown

Filed 8/24/17

IN THE SUPREME COURT OF CALIFORNIA

)

RON BRIGGS, )

)

Petitioner, )

) S238309

v. )

)

EDMUND G. BROWN, JR., )

as Governor, etc., et al., )

)

Respondents; )

)

CALIFORNIANS TO MEND, NOT END, )

THE DEATH PENALTY, etc., )

)

Intervener. )

____________________________________)

In the November 2016 election California voters approved Proposition 66,

the Death Penalty Reform and Savings Act of 2016. (Gen. Elec. (Nov. 8, 2016)

§ 1.) The measure’s various provisions are intended to facilitate the enforcement

of judgments and achieve cost savings in capital cases. Petitioner Ron Briggs

seeks writ relief from this court, challenging the constitutionality of certain aspects

of the proposition. Governor Edmund G. Brown, Jr., Attorney General Xavier

Becerra, and the Judicial Council of California oppose the petition as respondents.

They are joined by intervener Californians to Mend, Not End, the Death Penalty, a

campaign committee representing the proponents of the initiative. The issues

raised are of sufficient public importance to justify the exercise of our original

SEE CONCURRING AND DISSENTING OPINIONS

jurisdiction in the interest of a prompt resolution. (Legislature v. Eu (1991) 54

Cal.3d 492, 500.)1

Petitioner asserts four grounds for relief. He claims Proposition 66 (1)

embraces more than one subject, as prohibited by the California Constitution; (2)

interferes with the jurisdiction of California courts to hear original petitions for

habeas corpus relief; (3) violates equal protection principles by treating capital

prisoners differently from other prisoners with respect to successive habeas corpus

petitions; and (4) runs afoul of the separation of powers doctrine by materially

impairing the courts’ ability to resolve capital appeals and habeas corpus petitions,

and to manage their dockets in general.

Petitioner’s constitutional challenges do not warrant relief. However, we

hold that in order to avoid serious separation of powers problems, provisions of

Proposition 66 that appear to impose strict deadlines on the resolution of judicial

proceedings must be deemed directive rather than mandatory.

I. THE TERMS OF PROPOSITION 66

Proposition 66 includes a series of findings and declarations to the effect

that California’s death penalty system is inefficient, wasteful, and subject to

protracted delay, denying murder victims and their families justice and due

1 Petitioner Briggs, together with John Van de Kamp, sought an original writ

from this court the day after the election. After the Secretary of State certified the

election results, we granted petitioner’s motion to file an amended and renewed

petition. Because both petitions name the Judicial Council as a respondent, Chief

Justice Tani Cantil-Sakauye, as chair of the council, and Justice Ming Chin, as

vice-chair, are recused.

We stayed the implementation of Proposition 66 to provide time to resolve

petitioner’s challenge. After receiving papers in opposition, we issued an order to

show cause why the relief sought should not be granted, and continued the stay

pending our decision. While the stay was in effect, Mr. Van de Kamp died,

leaving Briggs as the sole petitioner.

2

process. (Voter Information Guide, Gen. Elec. (Nov. 8, 2016) § 2, p. 212 (Voter

Guide).) The measure enacts a series of statutory reforms, which may be grouped

into three general categories: (1) provisions to expedite review in capital appeals

and habeas corpus proceedings; (2) provisions governing the confinement of

prisoners sentenced to death and the administration of the death penalty; and (3)

provisions pertaining to California’s Habeas Corpus Resource Center. Petitioner

does not directly challenge each one of the measure’s provisions. We summarize

them all, however, as context for his claim that Proposition 66 unconstitutionally

addresses more than one subject. (See part II.A, post.)2

A. Expedited Review

Proposition 66 amends Penal Code section 190.6 to give the Judicial

Council 18 months to adopt rules and standards for expediting appeals and state

habeas corpus review in capital cases.3 (§ 190.6, subd. (d).) “Within five years of

the adoption of the initial rules or the entry of judgment, whichever is later, the

state courts shall complete the state appeal and the initial state habeas corpus

review in capital cases.” (Ibid.) The Judicial Council is directed to monitor the

review process and amend the rules and standards as necessary to complete

proceedings within the five-year period. (Ibid.)

Section 190.6, subdivision (b), an existing provision, sets a seven-month

limit on the filing of the opening brief in a capital appeal, except upon a showing

2 As in previous challenges to initiative measures, “we caution that our

summary description and interpretation of the measure by no means preclude

subsequent litigation regarding the meaning or legality of its provisions, apart

from the specific issues considered herein.” (Raven v. Deukmejian (1990) 52

Cal.3d 336, 341, citing Brosnahan v. Brown (1982) 32 Cal.3d 236, 242

(Brosnahan), and Amador Valley Joint Union High Sch. Dist. v. State Bd. of

Equalization (1978) 22 Cal.3d 208, 220.)

3 Hereafter, unspecified statutory citations are to the Penal Code.

3

of good cause or when the trial transcript exceeds 10,000 pages. Subdivision (e)

of section 190.6 is amended by Proposition 66 to provide that “[t]he failure of the

parties or of a court to comply with the time limit in subdivision (b) shall not

affect the validity of the judgment or require dismissal of an appeal or habeas

corpus petition. If a court fails to comply without extraordinary and compelling

reasons justifying the delay, either party or any victim of the offense may seek

relief by petition for writ of mandate. The court in which the petition is filed shall

act on it within 60 days of filing.” (Ibid.)

Section 1239.1 declares it the duty of this court to expedite review in

capital cases. We must appoint counsel for indigent appellants as soon as

possible, and grant extensions of time for briefing only “for compelling or

extraordinary reasons.” (§ 1239.1, subd. (a).) Proposition 66 calls on us and the

Judicial Council to reevaluate the competency standards for appointed counsel in

death penalty appeals and habeas corpus proceedings. “Experience requirements

shall not be limited to defense experience.” (Gov. Code, § 68665, subd. (b).)

The initiative measure extensively revamps the procedures governing

habeas corpus petitions in capital cases. Under current practice, habeas corpus

proceedings are initiated in this court, which appoints counsel and provides for

their compensation.4 Under the initiative measure, however, “[a] petition filed in

any court other than the court which imposed the sentence should be promptly

transferred to that court unless good cause is shown for the petition to be heard by

another court. A petition filed in or transferred to the court which imposed the

4 See Supreme Court Policies Regarding Cases Arising From Judgments of

Death, policy 3, standards governing filing of habeas corpus petitions and

compensation of counsel in relation to such petitions, originally adopted effective

June 6, 1989.

4

sentence shall be assigned to the original trial judge unless that judge is

unavailable or there is other good cause to assign the case to a different judge.”

(§ 1509, subd. (a).) The superior court is made responsible for appointing counsel

to represent indigent prisoners in capital cases. (§ 1509, subd. (b); Gov. Code,

§ 68662, as amended by Prop. 66.)

The initial habeas corpus petition must be filed within a year of the

appointment of counsel. (§ 1509, subd. (c).) An untimely initial petition, and any

“successive” petition, “shall be dismissed unless the court finds, by the

preponderance of all available evidence, whether or not admissible at trial, that the

defendant is actually innocent of the crime of which he or she was convicted or is

ineligible for the sentence.” (§ 1509, subd. (d).)5 Habeas corpus proceedings

“shall be conducted as expeditiously as possible, consistent with a fair

adjudication. The superior court shall resolve the initial petition within one year

of filing unless the court finds that a delay is necessary to resolve a substantial

claim of actual innocence, but in no instance shall the court take longer than two

years to resolve the petition.” (§ 1509, subd. (f).) The court must “issue a

statement of decision explaining the factual and legal basis for its decision.”

(Ibid.) Petitions that are pending in this court “may” be transferred to the

sentencing court. (§ 1509, subd. (g).)

5 “ ‘Ineligible for the sentence of death’ means that circumstances exist

placing that sentence outside the range of the sentencer’s discretion. Claims of

ineligibility include a claim that none of the special circumstances in subdivision

(a) of Section 190.2 is true, a claim that the defendant was under the age of 18 at

the time of the crime, or a claim that the defendant has an intellectual disability, as

defined in Section 1376. A claim relating to the sentencing decision under Section

190.3 is not a claim of actual innocence or ineligibility for the purpose of this

section.” (§ 1509, subd. (d).)

5

Under existing law, there is no right to appeal from a superior court’s

denial of habeas corpus relief. The petitioner may obtain review by filing a new

petition in a higher court. (In re Reed (1983) 33 Cal.3d 914, 918, fn. 2.) The

People have a statutory right to appeal a grant of relief in a capital case directly to

this court, under section 1506. Proposition 66 alters these procedures by

permitting either party to take an appeal from a superior court’s decision on an

initial habeas corpus petition to the court of appeal, and by specifying that “[a]

successive petition shall not be used as a means of reviewing a denial of habeas

relief.” (§ 1509.1, subd. (a).) The issues on appeal are limited to those raised

below, and to claims of ineffective assistance of trial counsel if habeas counsel’s

failure to raise such claims itself constituted ineffective assistance. (§ 1509.1,

subd. (b).) To pursue an appeal from a denial of relief on a successive petition, the

petitioner must obtain a certificate of appealability from the superior court or the

court of appeal based on a substantial claim for relief pertaining to actual

innocence or ineligibility for the death sentence. (§ 1509.1, subd. (c).) Appeals

under section 1509.1, subdivision (c) “shall have priority over all other matters

and be decided as expeditiously as possible.”

B. Conditions of Confinement and Administration of the Death Penalty

Proposition 66 requires that prisoners sentenced to death perform work in

prison and pay 70 percent of their wages and other trust account funds toward

restitution. (§ 2700.1.)

The measure amends section 3600 to allow the Department of Corrections

and Rehabilitation (the Department) to house male prisoners under a sentence of

death in any California prison that the Department finds will “provide a level of

security sufficient for that inmate. The inmate shall be returned to the prison

designated for execution of the death penalty after an execution date has been

6

set.”6 The Department must “maintain at all times the ability to execute” a

judgment of death. (§ 3604, subd. (e).)

Section 3604.1 provides an exemption from the Administrative Procedure

Act (Gov. Code, § 11340 et seq.) for “standards, procedures, or regulations”

governing administration of the death penalty. (§ 3604.1, subd. (a).) It also

permits execution by lethal injection to be carried out by means other than

intravenous, “if the warden determines that the condition of the inmate makes

intravenous injection impractical.” (§ 3604.1, subd. (b).) The sentencing court is

given exclusive jurisdiction over challenges to the method of execution. Such

claims must be dismissed if delayed without good cause. If the method is found

invalid, the court is to order the use of a valid method. If a federal court enjoins

use of a method of execution, the Department must, within 90 days, adopt a

method conforming to federal requirements. (§ 3604.1, subd. (c).)

Section 3604.3, subdivision (a) authorizes physicians to attend executions

for the purposes of pronouncing death and assisting the Department in developing

protocols. Physicians and other licensed health care professionals are protected

against disciplinary proceedings for any actions authorized by statute. (§ 3604.3,

subd. (c).) The purchase of medical supplies and equipment used in executions is

exempted from the provisions of the Pharmacy Law (Bus. & Prof. Code, § 4000 et

seq.). (§ 3604.3, subd. (b).)

C. The Habeas Corpus Resource Center

The Habeas Corpus Resource Center provides counsel, investigative staff,

and experts for prisoners in capital habeas corpus proceedings. Currently the

center is governed by a five-member board of directors chosen by the Appellate

6 Female prisoners sentenced to death are housed in the Central California

Women’s Facility in Chowchilla.

7

Projects.7 The board appoints an executive director, who is confirmed by the

California Senate. (Gov. Code, former § 68664.) Proposition 66 modifies the

governance of the center “to expedite the completion of state habeas corpus

proceedings in capital cases, and to provide quality representation in state habeas

corpus for inmates sentenced to death.” (Gov. Code, § 68660.5.)

The initiative measure abolishes the center’s board of directors, and

authorizes this court to appoint its executive director. (Gov. Code, § 68664, subd.

(b).) Salaries for the executive director and the center’s attorneys are set at the

levels of comparable positions at the office of the State Public Defender. (Gov.

Code, § 68664, subd. (e).) Government Code section 68661, subdivisions (g) and

(h) are amended to specify that the center’s role is limited to habeas corpus

representation. It may not engage in other litigation or expend funds on any other

form of advocacy. (Gov. Code, § 68661.1, subd. (b).) Government Code section

68661, subdivision (l) is amended to require that the center’s annual report list all

cases in which it is providing representation. In cases that have been pending for

more than a year, the center must state reasons for the delay and identify remedial

actions. Government Code section 68661.1, subdivision (a) imposes limits on the

center’s representation in federal habeas corpus proceedings.

II. DISCUSSION

We consider only the objections raised by the amended and renewed

petition before us. “We have no occasion at this time to consider other possible

attacks,” and “except as necessary to resolve the basic questions before us, we do

7 The Appellate Projects were established to fulfill the responsibility of each

District Court of Appeal to “adopt procedures for appointing appellate counsel for

indigents not represented by the State Public Defender in all cases in which

indigents are entitled to appointed counsel.” (Cal. Rules of Court, rule

8.300(a)(1).)

8

not consider in this case possible interpretive or analytical problems” that might

arise from the measure in the future. (Raven v. Deukmejian, supra, 52 Cal.3d at

pp. 340-341.) We review here a facial challenge to the constitutionality of

Proposition 66, and express no view on claims that may be presented by individual

prisoners based on their own circumstances.

We are guided by policies this court has consistently followed in cases

challenging the validity of initiative measures. “ ‘[T]he Constitution’s initiative

and referendum provisions should be liberally construed to maintain maximum

power in the people.’ ” (Independent Energy Producers Assn. v. McPherson

(2006) 38 Cal.4th 1020, 1032, quoting Legislature v. Deukmejian (1983) 34

Cal.3d 658, 675; see also Carlson v. Cory (1983) 139 Cal.App.3d 724, 728.)

Under article IV, section 1 of the California Constitution, “[t]he legislative power

of this State is vested in the California Legislature which consists of the Senate

and Assembly, but the people reserve to themselves the powers of initiative and

referendum.” “The initiative is the power of the electors to propose statutes and

amendments to the Constitution and to adopt or reject them.” (Id., art. II, § 8,

subd. (a).) We have declared it “our solemn duty to jealously guard the precious

initiative power, and to resolve any reasonable doubts in favor of its exercise.”

(Legislature v. Eu, supra, 54 Cal.3d at p. 501.)

“ ‘We do not consider or weigh the economic or social wisdom or general

propriety of the initiative. Rather, our sole function is to evaluate [it] legally in the

light of established constitutional standards.’ ” (Calfarm Ins. Co. v. Deukmejian

(1989) 48 Cal.3d 805, 814, quoting Amador Valley Joint Union High Sch. Dist. v.

State Bd. of Equalization, supra, 22 Cal.3d at p. 219, and citing Ferguson v.

Skrupa (1963) 372 U.S. 726, 730; see Brown v. Superior Court (2016) 63 Cal.4th

335, 352, fn. 11.) “ ‘[A]ll presumptions and intendments favor the validity of a

statute and mere doubt does not afford sufficient reason for a judicial declaration

9

of invalidity. Statutes must be upheld unless their unconstitutionality clearly,

positively, and unmistakably appears.’ [Citations.] If the validity of the measure

is ‘fairly debatable,’ it must be sustained. [Citations.]” (Calfarm, at pp. 814-815.)

With these principles in mind, we turn to petitioner’s challenges.

A. The Single-subject Claim

“An initiative measure embracing more than one subject may not be

submitted to the electors or have any effect.” (Cal. Const., art. II, § 8, subd. (d).)

Our jurisprudence in this area is well developed. “[W]e have upheld a variety of

initiative measures in the face of a single-subject challenge, emphasizing that the

initiative process occupies an important and favored status in the California

constitutional scheme and that the single-subject requirement should not be

interpreted in an unduly narrow or restrictive fashion that would preclude the use

of the initiative process to accomplish comprehensive, broad-based reform in a

particular area of public concern. (See, e.g., Fair Political Practices Com. v.

Superior Court (1979) 25 Cal.3d 33, 41 [upholding 1974 Political Reform Act

(Proposition 9)]; Brosnahan, supra, 32 Cal.3d 236, 245–253 [upholding the

Victims’ Bill of Rights (Proposition 8)]; Raven v. Deukmejian, supra, 52 Cal.3d

336, 346–349 [upholding Crime Victims Justice Reform Act (Proposition 115)];

Legislature v. Eu, supra, 54 Cal.3d 492, 512–514 [upholding the Political Reform

Act of 1990 (Proposition 140)].)” (Senate of the State of Cal. v. Jones (1999) 21

Cal.4th 1142, 1157.)

“[T]he single-subject provision does not require that each of the provisions

of a measure effectively interlock in a functional relationship. [Citation.] It is

enough that the various provisions are reasonably related to a common theme or

purpose.” (Legislature v. Eu, supra, 54 Cal.3d at p. 513.) Accordingly, we have

upheld initiative measures “ ‘which fairly disclose a reasonable and common sense

relationship among their various components in furtherance of a common

10

purpose.’ [Citation.]” (Id. at p. 512; accord, Senate of the State of Cal. v. Jones,

supra, 21 Cal.4th at p. 1157.) The governing principle is that “ ‘ “[a]n initiative

measure does not violate the single-subject requirement if, despite its varied

collateral effects, all of its parts are ‘reasonably germane’ to each other,” and to

the general purpose or object of the initiative. [Citations.]’ ” (Legislature v. Eu, at

p. 512.) The “reasonably germane” standard is applied “in an accommodating and

lenient manner so as not to unduly restrict . . . the people’s right to package

provisions in a single bill or initiative.” (Californians for an Open Primary v.

McPherson (2006) 38 Cal.4th 735, 764; cf. Brown v. Superior Court, supra, 63

Cal.4th at pp. 349-351.)

A review of other comprehensive criminal justice reforms enacted by

initiative, and upheld against single-subject challenges, demonstrates that

Proposition 66 passes the “reasonably germane” test. The “Victims’ Bill of

Rights” at issue in Brosnahan, supra, 32 Cal.3d 236, included provisions

providing for (1) restitution to crime victims; (2) an inalienable right to safe public

schools; (3) a sweeping restriction on judicially created rules of evidentiary

exclusion; (4) new limitations on grants of bail; (5) the use of prior felony

convictions for impeachment purposes; (6) abolishment of the diminished capacity

defense and reinstatement of the M’Naghten test for legal insanity;8 (7) sentence

enhancements for habitual criminals; (8) victim participation in sentencing

proceedings; (9) plea bargain restrictions; and (10) limitations on commitments to

the California Youth Authority (now the Division of Juvenile Justice).

(Brosnahan, at pp. 242-245.)

8 M’Naghten’s Case (1843) 8 Eng.Rep. 718, 722; see People v. Skinner

(1985) 39 Cal.3d 765, 768.

11

The Brosnahan court found it “readily apparent” that these provisions

shared “a common concern, ‘general object’ or ‘general subject,’ promoting the

rights of actual or potential crime victims. . . . [T]he 10 sections were designed to

strengthen procedural and substantive safeguards for victims in our criminal

justice system. These changes were aimed at achieving more severe punishment

for, and more effective deterrence of, criminal acts, protecting the public from the

premature release into society of criminal offenders, providing safety from crime

to a particularly vulnerable group of victims, namely school pupils and staff, and

assuring restitution for the victims of criminal acts.” (Brosnahan, supra, 32

Cal.3d at p. 247.)

In Raven v. Deukmejian, supra, 52 Cal.3d 336 (Raven), the court examined

the “Crime Victims Justice Reform Act,” which provided for (1) postindictment

preliminary hearings; (2) restricting certain state constitutional criminal rights to

afford no greater protection than is provided by the federal Constitution; (3) the

people’s right to due process and a speedy public trial; (4) greater flexibility with

regard to joinder and less with regard to severance; (5) admissibility of hearsay at

preliminary hearings; (6) reciprocal discovery in criminal cases and related

measures relating to preliminary examinations; (7) reformation of the voir dire

process; (8) additional felonies in the felony-murder statute; (9) special

circumstance reforms; (10) new provisions governing the crime of torture; (11)

appointment of counsel willing and able to proceed in a timely manner in felony

cases; and (12) a requirement that felony cases be set for trial within 60 days of

arraignment absent good cause for an extension, with writ review of such

determinations. (Id. at pp. 342-345.) The Raven court found Brosnahan

controlling. It held that “the various elements” of the measure before it “unite[d]

to form a comprehensive criminal justice reform package,” with “the single

12

subject” being “promotion of the rights of actual and potential crime victims.”

(Raven, at p. 347)9

Manduley v. Superior Court (2002) 27 Cal.4th 537 (Manduley) involved

the “Gang Violence and Juvenile Crime Prevention Act of 1998.” That initiative

measure included 13 provisions relating to criminal gang activity, four provisions

amending the Three Strikes law, and 17 provisions amending Welfare and

Institutions Code sections pertaining to the juvenile justice system. The Manduley

court observed that the “general object of the initiative is to address the problem of

violent crime committed by juveniles and gangs — not simply to reduce crime

generally.” (Id. at pp. 575-576.) It noted that broader criminal justice reforms

were upheld against single-subject challenges in Raven and Brosnahan. (Id. at p.

576.)

Although the Three Strikes reforms in Manduley “at first blush, might not

bear an obvious relationship to juvenile or gang offenders,” the court decided

“upon closer scrutiny we cannot properly conclude that they are not reasonably

related to the goal of the initiative.” (Manduley, supra, 27 Cal.4th at p. 577.)

“Even if some of the crimes added to the list of violent and serious felonies are

more likely to be committed by an adult who is not a gang member, the offenses

nonetheless constitute crimes that commonly are committed by members of street

gangs and/or juvenile offenders and thus bear a reasonable and commonsense

relationship to the purpose of the initiative.” (Id. at p. 578.) “Thus, despite the

collateral effects of these provisions upon adults who are not gang members, and

9 Though it found no violation of the single-subject requirement, the Raven

court struck down the provision restricting judicial interpretation of the state

Constitution as an impermissible constitutional revision. (Raven, supra, 52 Cal.3d

at p. 355.)

13

despite the circumstance that [one provision] has the incidental effect of adding

strikes that the Legislature previously had [not] included in the list of violent and

serious felonies, the provisions remain relevant to the common purpose of” the

measure. (Id. at pp. 578-579.)

Proposition 66 is more focused on a single subject than the initiative

measures upheld in Brosnahan, Raven, and Manduley. Petitioner posits that

Proposition 66 is intended to expedite review in capital cases, and contends four

provisions are unrelated to that purpose: (1) the requirement that prisoners work

and pay restitution (§ 2700.1); (2) the exemption of execution protocols from the

Administrative Procedure Act (§ 3604.1, subd. (a)); (3) the protections provided to

licensed medical professionals involved in executions (§ 3604.3, subd. (c)); and

(4) the abolishment of the Habeas Corpus Resource Center’s board of directors

(Gov. Code, § 68664, subd. (b)). Petitioner frames the purpose of Proposition 66

too narrowly. It is not solely concerned with the process of reviewing capital

judgments. As the findings and declarations prefacing the measure make clear, it

was intended as an extensive reform of the entire system of capital punishment to

make it more efficient, less expensive, and more responsive to the rights of

victims. (Voter Guide, supra, p. 212.) With that purpose in mind, it is readily

apparent that the provisions identified by petitioner are reasonably germane to the

“comprehensive criminal justice reform” approved by the voters. (Raven, supra,

52 Cal.3d at p. 347.)

Restitution is a significant aspect of a criminal sentence and a benefit to

victims. (See § 1202.4; People v. Dehle (2008) 166 Cal.App.4th 1380, 1386.)

“Imprisonment pending execution of a death sentence is a part of the punishment

for the crime” (People v. Rittger (1961) 55 Cal.2d 849, 852), and work

requirements are a normal feature of imprisonment (§ 2700). The exemption from

the Administration Procedure Act removes procedural impediments to execution

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protocols that are evident in published cases. (See Sims v. Department of

Corrections & Rehabilitation (2013) 216 Cal.App.4th 1059, 1083-1084; Morales

v. California Dept. of Corrections & Rehabilitation (2008) 168 Cal.App.4th 729,

732.) Allowing medical professionals to participate in executions without fear of

disciplinary action by licensing authorities is reasonably calculated to facilitate the

process of capital punishment. Placing the attorneys who work for the Habeas

Corpus Resource Center under the supervision of this court, instead of an

independent board of directors, is related to the goal of improving the efficiency of

their efforts. Even under petitioner’s constricted view of Proposition 66’s

purpose, the Habeas Corpus Resource Center reforms would qualify as reasonably

germane, given that the center is directly involved in the postconviction review

process.

B. The Jurisdictional Habeas Corpus Claims

Petitioner’s jurisdictional challenges to Proposition 66’s habeas corpus

reforms are based on article VI, sections 10 and 11 of the California

Constitution.10 Section 10 of article VI governs writ jurisdiction, including habeas

corpus. It confers original habeas corpus jurisdiction on all three levels of the

judicial system: “The Supreme Court, courts of appeal, superior courts, and their

judges have original jurisdiction in habeas corpus proceedings.” (Art. VI, § 10.)

Article VI, section 11 governs appellate jurisdiction. Generally, the courts of

appeal have jurisdiction over appeals when the superior courts have original

jurisdiction, with one exception: “The Supreme Court has appellate jurisdiction

when judgment of death has been pronounced.” (Art. VI, § 11, subd. (a).) These

provisions deal with jurisdiction in its most fundamental sense: the power of a

10 Undesignated references to article VI, sections 10 and 11 are to the state

Constitution.

15

court to hear and decide a case. (See 2 Witkin, Cal. Procedure (5th ed. 2008)

Jurisdiction, § 1, p. 575.)

Sections 10 and 11 of article VI are divergent in effect. This court has

exclusive appellate jurisdiction in capital cases under section 11. But original

habeas corpus jurisdiction, even in capital cases, is shared by all the state courts

under article VI, section 10. (See In re Carpenter (1995) 9 Cal.4th 634, 645-646.)

As we have noted, the existing practice in California has been that initial habeas

corpus petitions in capital cases are filed with this court. That, however, is not a

jurisdictional requirement. Article VI, section 10 confers jurisdiction on the

superior courts and courts of appeal to entertain such petitions as well.

Petitioner contends Proposition 66 violates article VI, section 10 by

(1) requiring initial habeas corpus petitions to be transferred to the sentencing

court, absent good cause for another court to hear them (§ 1509); (2) conferring

“exclusive jurisdiction” on the sentencing court over challenges to the method of

execution (§ 3604.1, subd. (c)); and (3) specifying that successive petitions may

not be used as a means of reviewing a denial of habeas corpus relief (§ 1509.1,

subd. (a)). Petitioner also argues that section § 1509.1, subdivision (a) deprives

this court of its exclusive appellate jurisdiction in capital cases under article VI,

section 11, by requiring appeals in habeas corpus cases to be taken to the courts of

appeal. All these claims fail.

1. Transfer to the Sentencing Court

In challenging section 1509’s provisions for the transfer of habeas corpus

petitions to the sentencing court, petitioner urges a strict reading of article VI,

section 10. He claims the procedural limitations in section 1509, subdivision (a)

are inconsistent with the constitutional grant of original habeas corpus jurisdiction

16

to all state courts.11 As to matters of procedure, however, the framers of our state

Constitution left considerable leeway for legislative prescription of habeas corpus

procedures. Article VI, section 10 was drafted in 1966, when California

comprehensively revised its Constitution to “rephrase” existing provisions “in

more modern, concise language and if necessary to organize [them] in a more

logical framework.” (Cal. Const. Revision Com., Proposed Revision (1966), p. 13

(Commission Report).) Article VI, which governs the judicial branch, was

modified to “remov[e] obsolete language, delet[e] unnecessary procedural

provisions, and introduc[e] the constitutional flexibility needed to permit a modern

and efficient administration of California’s judicial system.” (Judicial Council of

Cal., Ann. Rep. (1967) pt. 1, ch. 3, p. 65 (Council Report).)

With respect to section 10 of article VI, the California Constitution

Revision Commission explained that former provisions “concerning the issuance

and returnability of writs of habeas corpus” had been deleted “because the matter

can be dealt with by the Legislature under the grant of original jurisdiction.”

(Commission Report, supra, at p. 90, italics added; quoted in Griggs v. Superior

Court (1976) 16 Cal.3d 341, 349 (conc. & dis. opn. of McComb, J.).) The Judicial

Council, in its report on the revisions, similarly explained that “[t]he procedure for

the exercise of this original [writ] jurisdiction is left to promulgation by statutes

and rules,” while also noting that “the authority of the named courts to issue writs

of habeas corpus is specifically preserved . . . .” (Council Report, supra, pt. 1, ch.

11 “This section applies to any petition for writ of habeas corpus filed by a

person in custody pursuant to a judgment of death. . . . A petition filed in any court

other than the court which imposed the sentence should be promptly transferred to

that court unless good cause is shown for the petition to be heard by another court.

A petition filed in or transferred to the court which imposed the sentence shall be

assigned to the original trial judge unless that judge is unavailable or there is other

good cause to assign the case to a different judge.” (§ 1509, subd. (a).)

17

3, p. 75, italics added; quoted in Griggs, supra, 16 Cal.3d at pp. 349-350 (conc. &

dis. opn. of McComb, J.).)

We have recognized that “[b]y removing ‘unnecessary’ provisions from

article VI, and allowing those matters to be regulated by statute, the commission’s

revisions of article VI effectively broadened the scope of the Legislature’s control

over judicial procedures.” (Powers v. City of Richmond (1995) 10 Cal.4th 85, 94

(plur. opn. of Kennard, J.); see Leone v. Medical Board (2000) 22 Cal.4th 660,

667.) Thus, the provisions of article VI, section 10 do not tightly constrain the

scope of procedural legislation, although a statute may not substantially impair the

courts’ original writ jurisdiction. (Powers, at p. 110; Leone, at p. 668.) A chapter

of the Penal Code is devoted to habeas corpus procedures, which coexist with

judicially developed rules. (§ 1473 et seq.; see In re Roberts (2005) 36 Cal.4th

575, 582 (Roberts).) The power of the people to enact procedural reforms by way

of initiative measure is no less than that of the Legislature. (Legislature v.

Deukmejian, supra, 34 Cal.3d at p. 674.)

Contrary to petitioner’s argument, section 1509 actually preserves the

original writ jurisdiction of all three levels of the state courts, by providing that

“[a] petition filed in any court other than the court which imposed the sentence

should be promptly transferred to that court unless good cause is shown for the

petition to be heard by another court.” (§ 1509, subd. (a), italics added.) A

petition filed in another court is not dismissed, as it would be if jurisdiction were

absent. Instead, section 1509 provides for the transfer of a petition to the

sentencing court. As a matter of judicial policy, we have adopted the same rule

for habeas corpus petitions challenging parole determinations. “[A]mong the three

levels of state courts, a habeas corpus petition challenging a decision of the parole

board should be filed in the superior court, which should entertain in the first

instance the petition.” (Roberts, supra, 36 Cal.4th at p. 593, italics added.)

18

Like section 1509, Roberts calls for petitions filed elsewhere to be

transferred to the sentencing court. “[W]hen a habeas corpus petition challenging

the denial of parole or suitability for parole is filed in the superior court in a

county other than that in which the petitioner’s conviction and sentence were

imposed, the filing court should transfer the petition to the superior court in the

county of commitment in the first instance, prior to any determination being made

that the petitioner has made a prima facie case.” (Roberts, supra, 36 Cal.4th at p.

593, italics added.) This rule does not deprive the appellate courts of their original

writ jurisdiction, which they may exercise in appropriate circumstances. (In re

Kler (2010) 188 Cal.App.4th 1399, 1403-1404.) Section 1509 essentially adopts

the procedure developed in Roberts. It does not infringe on the jurisdiction

conferred by article VI, section 10.

Petitioner further contends that Government Code section 68662

unconstitutionally authorizes the superior courts to appoint counsel for prisoners in

habeas corpus proceedings conducted under Penal Code section 1509. There is no

constitutional infirmity here. Article VI, section 10 does not regulate such

matters.12

12 Petitioner speculates that if it is the superior court that appoints counsel in

habeas corpus proceedings, prisoners would be left without representation in

appellate court proceedings. This concern has no jurisdictional ramifications.

Furthermore, as practical matter no indigent prisoner in a capital case goes without

posttrial representation in California. (See In re Sanders (1999) 21 Cal.4th 697,

717-718; In re Anderson (1968) 69 Cal.2d 613, 633.) Whether such duties are

undertaken by counsel appointed by the superior court, by this court, or perhaps by

one of the appellate projects, is a matter that can be addressed by the rules and

standards of administration contemplated by section 190.6, subdivision (d).

19

2. Jurisdiction over Challenges to Execution Methods

Section 3604.1, subdivision (c) confers on the sentencing court “exclusive

jurisdiction to hear any claim by the condemned inmate that the method of

execution is unconstitutional or otherwise invalid.” Petitioner contends this

provision unconstitutionally strips the courts of appeal and this court of the

original habeas corpus jurisdiction granted by article VI, section 10. Proponents

defend the statute by arguing that challenges to execution methods are not

ordinarily brought in habeas corpus proceedings, but in civil suits that do not

implicate the jurisdictional provisions of article VI, section 10. (E.g., Glossip v.

Gross (2015) __ U.S. __ [135 S.Ct. 2726]; Morales v. California Dept. of

Corrections & Rehabilitation, supra, 168 Cal.App.4th 729; Sims v. Department of

Corrections & Rehabilitation, supra, 216 Cal.App.4th 1059.) They acknowledge,

however, that exceptions may be found recognizing the availability of habeas

corpus relief with respect to methods of execution. (See Hill v. McDonough

(2006) 547 U.S. 573, 583; In re Reno (2012) 55 Cal.4th 428, 462, fn. 17; In re

Anderson (1968) 69 Cal.2d 613, 631-632.)

Unlike section 1509, which preserves the original jurisdiction of the

appellate courts, section 3604.1, subdivision (c) makes no provision for exceptions

in extraordinary circumstances. Nevertheless, it does not explicitly interfere with

the reviewing courts’ jurisdiction. The jurisdiction conferred by our Constitution

“may not lightly be deemed to have been destroyed.” (Garrison v. Rourke (1948)

32 Cal.2d 430, 435.) An intent to divest a court of jurisdiction “is not read into the

statute unless that result is expressly provided or otherwise clearly intended.”

(Ibid.) We avoid conflicts between statutes and constitutional grants of

jurisdiction whenever possible, by “construing legislative enactments strictly

against the impairment of constitutional jurisdiction.” (California Redevelopment

Assn. v. Matosantos (2011) 53 Cal.4th 231, 253.)

20

Here we read section 3604.1, subdivision (c) narrowly, as addressing only

the appropriate superior court in which to challenge the method of execution.

Under section 1509, subdivision (a), a habeas corpus petition filed in a court other

than the sentencing court must be transferred to the sentencing court unless there

is good cause for another court to hear it. Section 3604.1, subdivision (c) modifies

this procedure in one respect: it precludes the transfer of habeas corpus claims

regarding execution methods to a superior court other than the sentencing court.

As so interpreted, the statute does not prevent a court of appeal or this court from

hearing a habeas corpus challenge to a method of execution, upon a showing of

good cause.

As discussed next, section 1509.1, subdivision (a) grants the courts of

appeal jurisdiction to review superior court habeas corpus rulings. We note that

neither petitioner nor proponents argue that section 3604.1, subdivision (c) bars

the courts of appeal from reviewing rulings on execution methods. The existence

of such appellate jurisdiction lends support to the conclusion that the exclusive

jurisdiction provisions of section 3604.1, subdivision (c) are intended to apply

only at the superior court level.13

3. Appellate Review

Section 1509.1, subdivision (a) states: “Either party may appeal the

decision of a superior court on an initial petition under Section 1509 to the court of

appeal. . . . A successive petition shall not be used as a means of reviewing a

denial of habeas relief.”14 These provisions are a significant departure from the

13 Petitioner makes no claim that section 3604.1, subdivision (c) infringes on

the jurisdiction of superior courts other than the sentencing court.

14 Section 1509.1, subdivision (a)’s use of the term “successive petition” is

inconsistent with this court’s terminology. We have used the term “new petition”

for habeas corpus petitions seeking review of a lower court’s ruling. (In re Clark

(Footnote continued on next page.)

21

existing procedure that would govern a capital habeas corpus petition filed in

superior court. A petitioner currently has no right to appeal from a superior court

denial of habeas corpus relief. Instead, review is obtained by filing a new habeas

corpus petition in a higher court. (Clark, supra, 5 Cal.4th at p. 767, fn. 7; Reed,

supra, 33 Cal.3d at p. 918, fn. 2.) The People, on the other hand, have a statutory

right to appeal from a superior court’s grant of relief on habeas corpus. Section

1506 provides: “An appeal may be taken to the court of appeal by the [P]eople

from a final order of a superior court made upon the return of a writ of habeas

corpus discharging a defendant or otherwise granting all or any part of the relief

sought, in all criminal cases, excepting criminal cases where judgment of death

has been rendered, and in such cases to the Supreme Court.” (Italics added.)

Petitioner contends the provision of section 1509.1, subdivision (a) that

requires appeals to be taken to the courts of appeal interferes with this court’s

exclusive appellate jurisdiction in capital cases under article VI, section 11. He

claims the provision barring the use of successive petitions for purposes of review

violates the original writ jurisdiction of the courts of appeal under article VI,

section 10. Thus, petitioner asserts that the courts of appeal cannot exercise

appellate jurisdiction in capital habeas corpus proceedings, while also contending

they cannot be deprived of their power of review by way of writ.

There is some support for the claim that our exclusive jurisdiction under

article VI, section 11 extends to habeas corpus proceedings. The provisions of

(Footnote continued from previous page.)

(1993) 5 Cal.4th 750, 767, fn. 7 (Clark); In re Reed, supra, 33 Cal.3d at p. 918, fn.

2 (Reed).) We have used “successive petition” to refer to one raising claims that

could have been presented in a previous petition. (See In re Robbins (1998) 18

Cal.4th 770, 788, fn. 9; Clark, at pp. 769-770.)

22

section 1506 appear to presume that it does, by specifying that appeals from a

grant of habeas corpus relief must be taken to this court in “criminal cases where

judgment of death has been rendered.” The same presumption was expressed, in

dicta, by In re Ketchel (1968) 68 Cal.2d 397. The Ketchel court noted that an

appeal from a habeas corpus ruling in favor of a capital prisoner was taken

“pursuant to article VI, section 11 . . . and . . . section 1506.” (Id. at p. 399.)

Nevertheless, upon closer examination we are persuaded that article VI, section 11

does not preclude statutory authorization for the courts of appeal to exercise

appellate jurisdiction in capital habeas corpus proceedings. As explained below,

appellate review of habeas corpus rulings is distinct from review of the underlying

judgment of death.

We examined the extent of our exclusive jurisdiction in Thompson v.

Department of Corrections (2001) 25 Cal.4th 117 (Thompson). Thompson filed

suit to compel prison authorities to allow his spiritual adviser to remain with him

until shortly before his execution. The superior court issued an injunction. The

court of appeal dismissed the authorities’ appeal on the ground that the matter was

within this court’s exclusive jurisdiction under article VI, section 11. (Thompson,

at p. 121.) We disagreed. Reviewing the relevant constitutional history, we noted

that all predecessor provisions had specified that our exclusive appellate

jurisdiction was limited to “ ‘criminal cases where judgment of death has been

rendered.’ ” (Id. at p. 123; see Cal. Const., former art. VI, § 4, as amended Nov. 8,

1904; id., as amended Nov. 5, 1918; id., as amended Nov. 6, 1928.) In the 1966

constitutional revision, the reference to “criminal cases” was deleted when the

exclusive jurisdiction provision was transferred to article VI, section 11.

However, we found nothing in the history of the 1966 revision indicating “an

intent to alter the scope of our exclusive jurisdiction over capital cases.”

(Thompson, at p. 124.)

23

“As a result, this court’s exclusive death penalty jurisdiction, as currently

described in section 11 of article VI, is the same as it was in section 4 of former

article VI, applying only to criminal cases in which a judgment of death has been

rendered.” (Thompson, supra, 25 Cal.4th at p. 124.) Because Thompson was “not

a criminal case,” but rather a civil suit for declaratory and injunctive relief, we

concluded “the appeal [did] not fall within this court’s exclusive jurisdiction.”

(Ibid.) Thompson’s description of our exclusive jurisdiction as limited to the

criminal case in which judgment was rendered is consistent with the understanding

expressed by the Judicial Council in its report on the 1966 constitutional revision

that framed article VI. “Under Section 11, the direct appellate jurisdiction of the

Supreme Court is restricted to those cases in which judgment of death has been

pronounced.” (Council Report., supra, pt. 1, ch. 3, p. 76.) In a number of

decisions, we have made it plain that a habeas corpus proceeding is not a part of

the criminal case in which the judgment of conviction is pronounced. Therefore,

our exclusive jurisdiction does not extend to habeas corpus proceedings.

In re Scott (2003) 29 Cal.4th 783 (Scott), was a capital habeas corpus case

in which we issued an order to show cause and appointed a referee to take

evidence on claims of ineffective assistance of counsel. (Id. at pp. 791-792.) At

the evidentiary hearing, Scott invoked his constitutional and statutory rights not to

be called as a witness in a criminal case. (Cal. Const., art. I, § 15; Evid. Code, §

930.) We rejected the attempt, holding that a habeas corpus proceeding is “civil in

nature” for purposes of the privileges at issue.15 (Scott, at p. 815.) The

15 We refrained in Scott from deciding “whether a habeas corpus proceeding

is civil or criminal for other purposes,” noting that “[i]t is a special proceeding and

not entirely analogous to either category.” (Scott, supra, 29 Cal.4th at p. 815, fn.

6.)

24

proceeding “is not itself a criminal case, and it cannot result in added punishment

for the petitioner. Rather, it is an independent action the defendant in the earlier

criminal case institutes to challenge the results of that case.” (Ibid.) In support of

that principle, Scott cited France v. Superior Court (1927) 201 Cal. 122, 126-127,

where the court declared that “[t]he writ of habeas corpus, . . . although granted to

inquire into the legality of one imprisoned in a criminal prosecution is not a

proceeding in that prosecution, but, on the contrary, is an independent action

instituted by the applicant therein to secure his discharge from such

imprisonment.”

In re Barnett (2003) 31 Cal.4th 466 (Barnett) considered whether prisoners

sentenced to death, and represented by counsel, are entitled to submit pro se

claims related to their habeas corpus petitions. We noted that no such right

pertains on appeal when the defendant has an attorney, and emphasized that “an

inmate’s rights regarding legal representation in a state habeas corpus proceeding

are even more limited than on an appeal.” (Id. at p. 474.) Habeas corpus relief is

“ ‘further removed from the criminal trial than is [appellate] review. It is not part

of the criminal proceeding itself, and it is in fact considered to be civil in nature.’ ”

(Ibid., fn. omitted, quoting Pennsylvania v. Finley (1987) 481 U.S. 551, 556–557,

and citing Scott, supra, 29 Cal.4th at p. 815.)

In People v. Superior Court (Pearson) (2010) 48 Cal.4th 564, we construed

section 1054.9’s provisions governing discovery in habeas corpus proceedings

brought by prisoners sentenced to death or life without parole. The People argued

that section 1054.9 was an unconstitutional attempt by the Legislature to amend

Proposition 115, which regulates discovery in criminal cases.16 We framed the

16 “The Legislature may not amend an initiative statute without subsequent

voter approval unless the initiative permits such amendment, ‘and then only upon

(Footnote continued on next page.)

25

issue as “whether discovery to prosecute (or prepare) a habeas corpus matter

comes within a ‘criminal case[]’ under section 1054.5,” a provision of Proposition

115. (Pearson, at p. 572.) We decided it did not, because “[a] habeas corpus

matter has long been considered a separate matter from the criminal case itself.”

(Ibid.) Pearson referred to In re Carpenter, supra, 9 Cal.4th at pp. 645–646,

which held that the superior court had jurisdiction over a habeas corpus petition

challenging the judgment in the underlying criminal case, even though it lacked

jurisdiction in the criminal case because it was on appeal.

The holding in Pearson turned on the independent nature of habeas corpus

proceedings. “Although section 1054.9’s discovery may occur before the actual

habeas corpus petition is filed, it is part of the prosecution of the habeas corpus

matter, not part of the underlying criminal case. [¶] Proposition 115’s discovery

provisions all deal with the underlying trial. For this reason, we have held that

they do not apply to habeas corpus matters (although they may provide guidance

in crafting discovery orders on habeas corpus). ([Scott, supra,] 29 Cal.4th 783,

813–814.)” (Pearson, supra, 48 Cal.4th at p. 572.)17

(Footnote continued from previous page.)

whatever conditions the voters attached to the Legislature’s amendatory powers.’ ”

(Pearson, supra, 48 Cal.4th at p. 568.)

17 In one limited circumstance, a habeas corpus proceeding is seen as an

extension of the underlying criminal action. If it is assigned to the same judge

who presided at trial, it is deemed a “continuation” of the trial so that the parties

are barred from exercising a peremptory challenge under Code of Civil Procedure

section 170.6. (Maas v. Superior Court (2016) 1 Cal.5th 962, 979.) The reason

for this rule, which applies in any subsequent proceeding closely related to the

original case, is to prevent litigants from disqualifying the judge most familiar

with the facts in the hope of obtaining a more favorable result. (Ibid.) The rule is

confined to its context, however, and does not alter the fundamental character of

(Footnote continued on next page.)

26

Scott, Barnett, and Pearson make it clear that regardless of whether habeas

corpus proceedings are deemed civil or criminal in nature (compare Scott, supra,

29 Cal.4th at p. 815, fn. 6, with Barnett, supra, 31 Cal.4th at p. 474), they are

separate actions. Accordingly, they are not cases “in which a judgment of death

has been rendered,” and do not come within our exclusive jurisdiction under

article VI, section 11. (Thompson, supra, 25 Cal.4th at p. 124.) This conclusion

harmonizes the appellate jurisdiction provisions in section 11 of article VI with the

writ jurisdiction provisions of section 10, which include no limitation applicable to

capital cases. As we have explained, there would be no constitutional impediment

to a court of appeal exercising its original jurisdiction over a habeas corpus

petition seeking review of a superior court denial of relief in a capital case. (See

Clark, supra, 5 Cal.4th at p. 767, fn. 7.) It would be anomalous if this court had

exclusive jurisdiction to review habeas corpus rulings on appeal in capital cases,

but shared jurisdiction with the courts of appeal over habeas corpus petitions filed

for the same purpose of reviewing a superior court ruling.18

For these reasons, section 1509.1, subdivision (a) does not violate the state

Constitution by granting appellate jurisdiction to the courts of appeal in capital

habeas corpus proceedings. As petitioner points out, however, it does conflict

(Footnote continued from previous page.)

the habeas corpus proceeding as “an independent, collateral challenge to an

earlier, completed criminal prosecution.” (Id. at p. 975.)

18 In In re Steele (2004) 32 Cal.4th 682, we recognized the courts of appeals’

writ jurisdiction to review trial court decisions in capital habeas corpus

proceedings. We held that rulings on discovery motions under section 1054.9 are

reviewable “by a petition for writ of mandate in the Court of Appeal.” (Steele, at

p. 692; see art. VI, § 10 [granting original jurisdiction to all three court levels in

mandamus proceedings as well as habeas corpus proceedings].)

27

with section 1506, which requires the People to appeal directly to this court if they

wish to challenge a grant of relief to a capital habeas petitioner. Proposition 66

does not expressly repeal this provision of section 1506, but an implied repeal is

plainly effected. Although there is a presumption against repeals by implication,

“[w]hen a later statute enacted by initiative is inconsistent and cannot operate

concurrently with an earlier statute enacted by the Legislature, the later statute

prevails.” (Burlington Northern & Santa Fe Ry. Co. v. Public Utilities

Commission (2003) 112 Cal.App.4th 881, 890; see Professional Engineers in

California Government v. Kempton (2007) 40 Cal.4th 1016, 1038 (Professional

Engineers).)

The provision of section 1509.1, subdivision (a) allowing “[e]ither party

[to] appeal the decision of a superior court on an initial petition . . . to the court of

appeal” cannot operate concurrently with the provision of section 1506 requiring a

People’s appeal to be taken to this court in a capital habeas corpus proceeding.

Proposition 66 was manifestly intended to occupy the field of habeas corpus

review of superior court rulings in capital cases. (See Professional Engineers,

supra, 40 Cal.4th at p. 1038.) The terms of section 1509.1, subdivision (a)

“demonstrate a clear intent by the electorate to supersede prior law,” displacing

the provisions of section 1506 governing People’s appeals from superior court

rulings. (Professional Engineers, at p. 1039.)19

19 Section 1506 also provides that “in all criminal cases where an application

for a writ of habeas corpus has been heard and determined in a court of appeal,

either the defendant or the [P]eople may apply for a hearing in the Supreme

Court.” Should a court of appeal determine that good cause exists under section

1509, subdivision (a) for it to hear a capital habeas corpus petition, this provision

of section 1506 would be applicable. No provision of Proposition 66 addresses

review in these circumstances.

28

Petitioner further argues that section 1509.1, subdivision (a) is

unconstitutional because it makes an appeal the exclusive means of reviewing a

superior court habeas corpus ruling. The statute declares that “[a] successive

petition shall not be used as a means of reviewing a denial of habeas relief,”

abolishing the existing practice under which review may be obtained by filing a

new petition in a higher court. (§ 1509.1, subd. (a).) Petitioner claims this

restriction infringes on the original habeas corpus jurisdiction of the appellate

courts under article VI, section 10. We disagree.

It is true that the former method of seeking review by filing a new petition

was based on the appellate courts’ original habeas corpus jurisdiction. (Reed,

supra, 33 Cal.3d at p. 918, fn. 2; In re Michael E. (1975) 15 Cal.3d 183, 193, fn.

15.) However, it does not follow that the discontinuation of that practice violates

article VI, section 10. Section 1509.1, subdivision (a)’s bar against renewed

petitions in a higher court speaks not to jurisdiction, but to the use of habeas

corpus for a particular purpose. Statutory restrictions on the subject matter of

renewed petitions are an accepted means of combatting abusive practices. (See

§ 1475; Clark, supra, 5 Cal.4th at pp. 770-774.) The courts themselves have

developed a number of “procedural bars” in an attempt to put reasonable limits on

collateral attacks by way of habeas corpus. (Clark, at pp. 763-770.) These include

a long-established rule that habeas corpus may not be employed as a substitute for

appeal, either by challenging claims rejected on an earlier appeal (In re Waltreus

(1965) 62 Cal.2d 218, 225), or by raising claims that could have been but were not

raised on appeal (In re Dixon (1953) 41 Cal.2d 756, 759). Under section 1509.1,

subdivision (a), review of habeas corpus rulings is now available to petitioners on

appeal. The statute’s bar on renewed petitions is a procedural one, limited in

scope and similar in effect to the Waltreus and Dixon rules. It is a reasonable

effort to avoid duplication, consistent with settled law that habeas corpus does not

29

serve as a second appeal. (In re Harris (1993) 5 Cal.4th 813, 825-827.) It does

not prevent a court from exercising its writ jurisdiction, but merely provides it

with another tool for disposing of repeated claims.

Thus, section 1509.1, subdivision (a) does not violate article VI, section 10.

We note that prisoners are free to challenge the restriction on grounds peculiar to

their own circumstances.

C. The Equal Protection Claim

Petitioner argues that Proposition 66’s restrictions on successive habeas

corpus petitions by prisoners sentenced to death violate the equal protection

clauses of the state and federal Constitutions. Section 1509, subdivision (d)

requires that “a successive petition whenever filed” be dismissed unless the court

finds the prisoner actually innocent or ineligible for the death penalty. This rule is

a substantial revision of the policy established in Clark, supra, 5 Cal.4th 750.

Under Clark, successive petitions are permitted even “absent justification for the

failure to present all known claims in a single, timely petition,” if the prisoner can

establish that a “fundamental miscarriage of justice occurred.” (Id. at p. 797.)20

Nevertheless, petitioner’s equal protection claim stumbles at the threshold.

20 Clark explained that a “fundamental miscarriage of justice” occurs when “it

can be demonstrated: (1) that error of constitutional magnitude led to a trial that

was so fundamentally unfair that absent the error no reasonable judge or jury

would have convicted the petitioner; (2) that the petitioner is actually innocent of

the crime or crimes of which the petitioner was convicted; (3) that the death

penalty was imposed by a sentencing authority which had such a grossly

misleading profile of the petitioner before it that absent the trial error or omission

no reasonable judge or jury would have imposed a sentence of death; (4) that the

petitioner was convicted or sentenced under an invalid statute.” (Clark, supra, 5

Cal.4th at pp. 797-798, fns. omitted.)

Petitioner also relies on the provisions of section 1473 governing habeas

corpus petitions based on claims of “false evidence.” However, section 1473 does

not mention successive petitions. While it may apply to such petitions, petitioner

(Footnote continued on next page.)

30

“ ‘Broadly stated, equal protection of the laws means “that no person or

class of persons shall be denied the same protection of the laws [that] is enjoyed

by other persons or other classes in like circumstances in their lives, liberty and

property and in their pursuit of happiness.” [Citation.]’ [Citation.] It does not

mean, however, that ‘ “things . . . different in fact or opinion [must] be treated in

law as though they were the same.” [Citation.]’ [Citation.] ‘[N]either the

Fourteenth Amendment of the Constitution of the United States nor the California

Constitution [citations] precludes classification by the Legislature or requires

uniform operation of the law with respect to persons who are different.’

[Citation.] Thus, . . . a threshold requirement of any meritorious equal protection

claim ‘is a showing that the state has adopted a classification that affects two or

more similarly situated groups in an unequal manner. [Citation.]’ [Citation.]

‘This initial inquiry is not whether persons are similarly situated for all purposes,

but “whether they are similarly situated for [the particular] purposes of the law

challenged.” ’ ” (People v. Guzman (2005) 35 Cal.4th 577, 591-592, italics

added.)

Petitioner argues that prisoners sentenced to death are situated similarly to

noncapital prisoners because both groups have the same interest in freedom from

an illegal or unjust conviction or sentence. Such a characterization of the interest

at stake is overly broad. The question is whether capital and noncapital prisoners

are similarly situated for purposes of section 1509’s restrictions on the filing of

successive petitions. Proponents point out that in California only capital prisoners

(Footnote continued from previous page.)

does not suggest it overrides the Clark limitations, or explain why section 1509

may not further limit false evidence claims in successive petitions consistently

with equal protection principles.

31

are guaranteed postconviction counsel and funds for investigation, and thus they

are better able than noncapital prisoners to present a comprehensive initial habeas

corpus petition. (See In re Reno, supra, 55 Cal.4th at pp. 456-457 (Reno).) The

reason for these guarantees arises from considerations unique to the death penalty:

“In a capital case, a detailed and comprehensive first state habeas corpus petition

serves an important purpose, for courts can rest assured that, between the trial, the

appeal, and the habeas corpus petition, the defense has had ample opportunity to

raise all meritorious claims, the adversarial process has operated correctly, and

both this court and society can be confident that, before a person is put to death,

the judgment that he or she is guilty of the crimes and deserves the ultimate

punishment is valid and supportable.” (Id. at p. 456, fn. omitted.)

With respect to successive petitions, Reno set out the significant differences

between capital and noncapital prisoners. We observed that the justification for a

comprehensive first habeas corpus petition in a capital case “all but disappears for

second and subsequent petitions in this court. Absent the unusual circumstance of

some critical evidence that is truly ‘newly discovered’ under our law, or a change

in the law, such successive petitions rarely raise an issue even remotely plausible,

let alone state a prima facie case for actual relief. In the 18 years since [] Clark,

supra, 5 Cal.4th 750, experience has taught that in capital cases, petitioners

frequently file second, third, and even fourth habeas corpus petitions raising

nothing but procedurally barred claims.” (Reno, supra, 55 Cal.4th at pp. 457-458,

fns. omitted.) Such abusive successive writ practices are not nearly so common in

noncapital cases.

Reno noted that the prevalence of meritless successive writ petitions “has

threatened to undermine the efficacy of the system for adjudicating petitions for

collateral relief in cases involving the death penalty.” (Reno, supra, 55 Cal.4th at

p. 442.) Accordingly, we “establish[ed] some new ground rules for [successive]

32

petitions in capital cases that will speed this court’s consideration of them without

unfairly limiting petitioners from raising (and exhausting) justifiably new claims.”

(Id. at p. 443.) We deemed these new rules necessary because abusive practices

were a problem specific to capital cases. “The abusive nature of the instant

petition is by no means an isolated phenomenon. In those capital cases in which

we have affirmed the judgment on appeal and then denied a typically lengthy first

habeas corpus petition, we often — years later — receive [a successive] petition

running several hundred pages long. Evaluation of the [successive] petition

requires several weeks if not months of dedicated work by members of the court.

As here, quite often the petition is nothing more than a repetition or reframing of

past claims and unsubstantiated assertions of ineffective assistance of counsel.

Rarely if at all does the petitioner justify his or her untimely presentation of

claims.

“These practices, along with other factors, have created a significant threat

to our capacity to timely and fairly adjudicate such matters. We are of course

aware that ‘death row inmates have an incentive to delay assertion of habeas

corpus claims that is not shared by other prisoners.’ ([] Clark, supra, 5 Cal.4th at

p. 806 (conc. & dis. opn. of Kennard, J.); see Rhines v. Weber (2005) 544 U.S.

269, 277–278 [suggesting capital defendants ‘might deliberately engage in dilatory

tactics to prolong their incarceration and avoid execution of the sentence of

death’].) Yet those capital defendants whose appeals are fully briefed, and those

habeas corpus petitioners whose briefing also is complete who may desire

resolution, must sit and wait while we attend to these time-consuming but

generally meritless [successive] petitions. Some death row prisoners with

meritorious legal claims may languish in prison for years waiting for this court’s

review while we evaluate petitions raising dozens or even hundreds of frivolous

and untimely claims. We are not the only state court of last resort concerned that

33

abusive [successive] petitions threaten the court’s ability to function. (See

Commonwealth of Pennsylvania v. Spotz (2011) 610 Pa. 17, 171 (conc. opn. of

Castille, C. J.) [estimating that the time required to evaluate an abusive

postconviction petition in capital cases renders the Pa. Supreme Ct. ‘unable to

accept and review about five discretionary appeals’].)” (Reno, supra, 55 Cal.4th at

pp. 514-515, italics added.)

The new rules announced in Reno established page limits for successive

petitions in capital cases and permitted certain claims to be presented in

abbreviated form. (Reno, supra, 55 Cal.4th at pp. 515-516.) We also required

counsel to clearly identify those claims that were earlier raised and rejected and in

what proceedings, those claims that could have been raised earlier, those that were

truly new, and those presented pursuant to federal court order requiring the

exhaustion of state claims. (Id. at p. 443.) We advised counsel that in the future,

abusive writ practices could result in financial sanctions. (Id. at p. 514.) We

adopted these extraordinary measures to address issues peculiar to the successive

petition process in capital cases. Section 1509 tackles the same problems. Our

exhaustive discussion in Reno explains how successive petitions in capital cases

present special difficulties, and demonstrates that capital and noncapital petitioners

are not similarly situated with respect to section 1509.

Petitioner relies on Allen v. Butterworth (Fla. 2000) 756 So.2d 52, in which

the Florida Supreme Court commented that a statute imposing deadlines on capital

postconviction procedures violated equal protection. (Id. at p. 54.) The comment

was dictum. The Allen court conducted no equal protection analysis, and based its

holding instead on separation of powers grounds. (Ibid.; see Abdool v. Bondi (Fla.

2014) 141 So.3d 529, 546.) In Abdool, the same court rejected an equal protection

challenge to a different statute restricting the time for capital defendants to file

postconviction motions. Holding that the statute did not unjustifiably treat capital

34

defendants differently from noncapital defendants, the court added: “[E]ven if we

were to find that equal protection is implicated, there is no constitutional violation.

. . . death sentences are necessarily different [from] other sentences. Unlike

incarcerative sentences, which are carried out over a period of time, a death

sentence is not accomplished until execution. Thus, defendants who have been

convicted and sentenced to death are necessarily treated differently.” (Abdool, at

p. 546.) These observations are consistent with our conclusion here.21

Our holding on the equal protection claim raised by petitioner poses no bar

to other constitutional challenges to section 1509, one of which we discuss next. It

merely reflects the reality that successive habeas corpus petitions in capital cases

present problems distinct from those in noncapital cases.

D. The Separation of Powers Claims

Petitioner contends Proposition 66 violates the separation of powers

doctrine by defeating or materially impairing the exercise of judicial functions in

various ways. After a review of separation of powers principles, we discuss

petitioner’s attack on section 1509’s restrictions on untimely and successive

21 Petitioner also relies on State v. Noling (Ohio 2016) 75 N.E.3d 141. There,

the Ohio Supreme Court decided that equal protection principles were violated by

a statute requiring capital offenders to obtain leave from that court to file an appeal

from the denial of a postconviction motion for DNA testing. Other offenders had

unfettered access to the court of appeals after such a denial. (Id. at pp. 145-146.)

The court disagreed with an argument that capital and non-capital offenders were

not similarly situated. “[T]he statutory scheme relevant here concerns applications

for postconviction DNA testing. . . . That certain applicants are sentenced to death

and others to prison terms is nearly irrelevant under the statute.” (Id. at p. 148.)

The Ohio court’s reasoning is consistent with the equal protection principle

that the pertinent inquiry is whether persons are similarly situated for purposes of

the law challenged. (See People v. Guzman, supra, 35 Cal.4th at p. 592.) As

explained above, the successive petition restrictions of section 1509, subdivision

(d) address issues arising particularly in capital postconviction proceedings.

35

habeas corpus petitions. We then address his arguments about Proposition 66’s

time limits and other measures intended to expedite proceedings. 22

1. Governing Principles

“The powers of state government are legislative, executive, and judicial.

Persons charged with the exercise of one power may not exercise either of the

others except as permitted by this Constitution.” (Cal. Const., art. III, § 3.)

“Although the language of California Constitution article III, section 3, may

suggest a sharp demarcation between the operations of the three branches of

government, California decisions long have recognized that, in reality, the

separation of powers doctrine ‘ “does not mean that the three departments of our

government are not in many respects mutually dependent” ’ [citation], or that the

actions of one branch may not significantly affect those of another branch.”

(Superior Court v. County of Mendocino (1996) 13 Cal.4th 45, 52 (Mendocino).)

“Of necessity the judicial department as well as the executive must in most

matters yield to the power of statutory enactments. [Citations.] The power of the

legislature to regulate criminal and civil proceedings and appeals is undisputed.”

(Brydonjack, supra, 208 Cal. at pp. 442-443; accord, Mendocino, supra, 13

22 In passing, petitioner claims the separation of powers doctrine is violated

by the provisions of Government Code section 68665, calling on this court and the

Judicial Council to reevaluate the competency standards for appointed counsel in

capital postconviction proceedings. He relies on Brydonjack v. State Bar (1929)

208 Cal. 439, 442–443 (Brydonjack), where we construed a statute to avoid any

restriction on our power to determine the qualifications for admission to the bar.

Brydonjack is inapposite. Here the statute in no way infringes on our authority

over admission to the practice of law. It merely provides guidelines for the

exercise of our discretion over the qualifications of appointed counsel. (See Gov.

Code, § 68665, subd. (b).)

36

Cal.4th at p. 54.)23 The scope of this power is broad, but not unlimited. “[T]he

legislature may put reasonable restrictions upon constitutional functions of the

courts provided they do not defeat or materially impair the exercise of those

functions. . . . ‘[T]he mere procedure by which jurisdiction is to be exercised may

be prescribed by the Legislature, unless . . . such regulations should be found to

substantially impair the constitutional powers of the courts, or practically defeat

their exercise. [Citations.]” (Brydonjack, at p. 444; accord, Mendocino, at p. 54.)

We have emphasized that “[t]he separation of powers limitation on the

Legislature’s power to regulate procedure is narrow. Chaos could ensue if courts

were generally able to pick and choose which provisions of the Code of Civil

Procedure to follow and which to disregard as infringing on their inherent powers.

The same concern applies to the Evidence Code, which, after all, generally limits a

court’s ability to consider evidence. In most matters, the judicial branch must

necessarily yield to the legislative power to enact statutes. [Citations.] Only if a

legislative regulation truly defeats or materially impairs the courts’ core functions

. . . may a court declare it invalid.” (Le Francois v. Goel (2005) 35 Cal.4th 1094,

1104 (Le Francois); see Legislature v. Deukmejian, supra, 34 Cal.3d at p. 674

[initiative measures are subject to the same constitutional limitations as statutes

passed by the Legislature].) Our observations in Le Francois apply equally to the

Penal Code’s procedural provisions.

23 Not all states grant such extensive authority over procedural law to the

legislative branch. In Florida, the Supreme Court has “exclusive power to ‘adopt

rules for the practice and procedure in all courts.’ Art. V, § 2(a), Fla. Const.”

(Allen v. Butterworth, supra, 756 So.2d at p. 54.) Because of that significant

difference, the separation of powers holding in Allen affords no support to

petitioner.

37

2. The Restriction on Untimely and Successive Petitions

Section 1509, subdivision (c) states a general rule that an initial habeas

corpus petition must be filed within one year of the superior court’s order under

Government Code section 68662, which directs the court either to appoint counsel

for an indigent prisoner, find that the prisoner rejected an offer of an appointment,

or deny an appointment on the ground that the prisoner is not indigent. Section

1509, subdivision (d) provides: “An initial petition which is untimely under

subdivision (c) or a successive petition whenever filed shall be dismissed unless

the court finds, by the preponderance of all available evidence, whether or not

admissible at trial, that the defendant is actually innocent of the crime of which he

or she was convicted or is ineligible for the sentence.”

Petitioner contends the restrictions imposed by section 1509, subdivision

(d) amount to a material impairment of the courts’ inherent authority to consider

successive and untimely petitions. He points out that the statute’s limitations on

habeas corpus claims go well beyond those this court has developed in cases such

as In re Robbins, supra, 18 Cal.4th 770, and Clark, supra, 5 Cal.4th 750. What he

does not point to is any authority holding that our power to prescribe limitations

on habeas corpus petitions is exclusive, so that legislative action on that subject

would violate the separation of powers. To the contrary, in Clark we recognized

that legislation may be enacted “to control abuses of the writ and thereby spare

courts with jurisdiction over habeas corpus petitions the burden of repetitious

petitions.” (Clark, at p. 771.) It is not unusual for initiative measures to “adopt

various changes in procedural or substantive law previously mandated by this

court.” (Raven, supra, 52 Cal.3d at p. 348.) Petitioner cites no case in which such

reforms have been struck down as material impairments of the judicial function

because they alter judicially established rules.

38

As noted, we have long accorded priority to the legislative branch

respecting measures “to regulate criminal and civil proceedings and appeals.”

(Brydonjack, supra, 208 Cal. at pp. 442–443; see Le Francois, supra, 35 Cal.4th at

p. 1104.) Accordingly, to violate the separation of powers an initiative measure

must do more than merely curtail procedures developed by this court. In

Mendocino, we pointed out that while the courts have inherent power to act in

certain areas without specific constitutional or legislative authorization, that does

not mean a statute “necessarily violates the separation of powers doctrine

whenever it legislates with regard to such an inherent judicial power or function.”

(Mendocino, supra, 13 Cal.4th at p. 57; see People v. Standish (2006) 38 Cal.4th

858, 879-880.)

Thus, section 1509, subdivision (d) is not objectionable simply because it

legislates in an area where we have exercised our inherent authority. We note that

some judicially imposed habeas corpus limitations have barred claims that do not

go to the prisoner’s actual innocence, such as those based on the admission of

illegally obtained evidence. (See Clark, supra, 5 Cal.4th at p. 767.) Proposition

66 goes further in this direction, but that does not make it an invasion of a core

judicial function. Courts continue to exercise their authority to entertain habeas

corpus petitions under section 1509, as they did under the previous common law

limitations. The new restrictions may limit claims that this court previously

allowed prisoners to pursue, such as petitions seeking relief when a change in the

law affects the validity of the statute under which the prisoner was convicted or

sentenced. (See Reno, supra, 55 Cal.4th at p. 466; Clark, at p. 798; compare Lott

v. State (Mont. 2006) 150 P.3d 337, 342.) Going forward, prisoners may seek to

challenge such limitations in the context of their individual cases. We express no

view on their prospects for relief, holding only that the modifications imposed by

section 1509 do not materially impair the functioning of the courts.

39

3. Time Limits

Petitioner argues that a variety of time limits and calls for expedited

proceedings in Proposition 66 interfere with the courts’ inherent power to fairly

and effectively address all the matters before them. We note that grants of priority

to certain matters, and directives to conduct proceedings as speedily as possible,

are a common feature of procedural statutes.24 These legislatively imposed

priorities have never been held to impair the courts’ authority to control the

disposition of the cases on their dockets. Accordingly, the provisions of

Proposition 66 imposing a duty on this court to “expedite the review” of capital

cases, appoint counsel “as soon as possible,” and grant extensions of time for

briefing only for “compelling or extraordinary reasons” (§ 1239.1, subd. (a)) are

within the ordinary range of legislative authority. The same is true for provisions

that require superior courts to conduct habeas corpus proceedings “as

expeditiously as possible” (§ 1509, subd. (f)), and that declare it a purpose of the

statutes governing the Habeas Corpus Resource Center “to expedite the

24 For example, see sections 1048 (setting calendar priorities for criminal

cases) and 1050, subdivision (a) (giving criminal cases “precedence over . . . any

civil matters” as to trial setting); Welfare and Institutions Code sections 315

(detention hearing for dependent minor “shall be held as soon as possible” and no

later than next judicial day after petition is filed), 632, subdivision (a) (same

provision for delinquent minors), 395, subdivision (a)(1) (appeals in dependency

cases given “precedence over all other cases”), 800 (same provision for

delinquency appeals); Code of Civil Procedure sections 35 (trial calendar

preference for election matters), 36 (trial calendar preference for the aged,

children, and the very ill), 44 (preference on appeal for probate proceedings,

election contests, and certain defamation cases), 460.5 (calendar preference and

other provisions for expediting proceedings in libel and slander actions), 1062.3,

subdivision (a) (declaratory relief actions “shall be set for trial at the earliest

possible date and shall take precedence over all other cases”), 1291.2 (general

calendar preference for arbitration cases); and Family Code section 3454

(expedited appellate procedures in child support enforcement cases).

40

completion of state habeas corpus proceedings in capital cases” (Gov. Code,

§ 68660.5).

Petitioner also challenges the specific time limits provided in sections

190.6, subdivision (d) and 1509, subdivision (f). Section 190.6, subdivision (d)

imposes a five-year limit on the completion of the appellate and initial habeas

corpus review processes.25 Section 1509, subdivision (f) requires the superior

court to resolve an initial petition within one year unless a substantial claim of

actual innocence requires a delay, and sets a two-year boundary for the completion

of every initial habeas corpus proceeding.26 A more searching inquiry is

necessary to determine whether such restrictions violate the separation of powers.

The subject is not a new one. We have long recognized that imposing fixed

time limits on the performance of judicial functions raises serious separation of

powers concerns. In Garrison v. Rourke, supra, 32 Cal.2d 430 (Garrison), we

declared that “[a] time limitation for the court’s action in a matter subject to its

determination is not mandatory (regardless of the mandatory nature of the

language), unless a consequence or penalty is provided for failure to do the act

within the time commanded.” (Id. at pp. 435-436; see Kabran v. Sharp Memorial

25 “Within 18 months of the effective date of this initiative, the Judicial

Council shall adopt initial rules and standards of administration designed to

expedite the processing of capital appeals and state habeas corpus review. Within

five years of the adoption of the initial rules or the entry of judgment, whichever is

later, the state courts shall complete the state appeal and the initial state habeas

corpus review in capital cases.” (§ 190.6, subd. (d).)

26 “Proceedings under this section shall be conducted as expeditiously as

possible, consistent with a fair adjudication. The superior court shall resolve the

initial petition within one year of filing unless the court finds that a delay is

necessary to resolve a substantial claim of actual innocence, but in no instance

shall the court take longer than two years to resolve the petition.” (§ 1509, subd.

(f).)

41

Hospital (2017) 2 Cal.5th 330, 343; People v. Allen (2007) 42 Cal.4th 91, 102.)

At issue in Garrison was the effect of a statute requiring the trial court to rule on

an election contest within 10 days.27 The court missed the deadline but

subsequently issued a ruling. The losing party contended the court had lost

jurisdiction when the time limit was exceeded. (Garrison, at pp. 433-434.)

The Garrison court rejected the claim, invoking the separation of powers

doctrine. “While the courts are subject to reasonable statutory regulation of

procedure and other matters, they will maintain their constitutional powers in

order effectively to function as a separate department of government. [Citations.]

Consequently an intent to defeat the exercise of the court’s jurisdiction will not be

supplied by implication. To what extent the Legislature may constitutionally enact

regulations affecting procedure which will defeat or interfere with the exercise of

jurisdiction or of the judicial power [citations], is not necessary to determine in the

absence, as here, of provisions clearly indicating that intent.” (Garrison, supra, 32

Cal.2d at p. 436.) Reasoning that the primary aim of the statute before it was not

speed, but ensuring the fairness of an election, Garrison declined to give the term

“shall” its normal mandatory interpretation, which would “lead to the result of

defeating the aims and purposes of the statute and of raising serious constitutional

questions.” (Id. at p. 437.)

Garrison relied in part on In re Shafter-Wasco Irr. Dist. (1942) 55

Cal.App.2d 484 (Shafter-Wasco), which involved a time limit on the resolution of

27 Elections Code former section 8556: “The court shall continue in special

session to hear and determine all issues arising in contested elections. After

hearing the proofs and allegations of the parties and within ten days after the

submission thereof the court shall file its findings of fact and conclusions of law,

and immediately thereafter shall pronounce judgment in the premises, either

confirming or annulling and setting aside the election. The judgment shall be

entered immediately thereafter.”

42

an appeal. An uncodified statute governing the dissolution of irrigation districts

provided that an action contesting the validity of such a dissolution “ ‘shall be

speedily tried and judgment rendered. Either party shall have the right to appeal at

any time within thirty days after the entering of such judgment, and the appeal

must be heard and determined within three months after the taking of such

appeal.’ ” (Shafter-Wasco, at p. 486.) The respondents moved to dismiss the

appeal after the three-month period expired. The court noted that “all the

proceedings in this appeal have been taken within the times established for appeals

in ordinary cases,” yet the time set for decision had elapsed before the

respondents’ brief was due. (Ibid.) “The question here presented may be thus

stated: May the Legislature divest this court of its constitutional jurisdiction over

the case and its duty to decide it by limiting the time in which a decision must be

rendered, to a period within which it is impracticable, if not impossible, to decide

the issues?” (Id. at p. 487.)

“Of course it is within the power of the Legislature to impose reasonable

rules and regulations governing the exercise of a constitutional power. It is

equally true that those constitutional powers may not be so restricted by

unreasonable rules as to virtually nullify them. If the statute in question be strictly

construed as mandatory and as divesting this court of jurisdiction in three months

after the appeal was taken we would have had to decide the case . . . one month

and two days after the record was filed here, three days after appellant’s opening

brief was filed and twenty-seven days before respondents’ brief was due for filing.

We regard such a limitation on our constitutional power to decide the case as

unreasonable . . . . While the record is not formidable it is not inconsiderable.

While we have not examined it, there may be presented serious questions for

decision that might require careful consideration which could not be given within

43

the time provided by the statute.” (Shafter-Wasco, supra, 55 Cal.App.2d at p.

487.)

The court acknowledged that a statute declaring an appeal “must be heard

and determined within three months” would “usually [be] construed as

mandatory.” (Shafter-Wasco, supra, 55 Cal.App.2d at p. 488.) However, relying

on the rules favoring statutory construction to avoid absurd or unjust results,

account for statutory context, and uphold a statute’s constitutionality when

reasonably possible, the court concluded that the time limit before it was

“directory and was intended to give this appeal as early a hearing and decision as

orderly procedure in this court will permit.” (Id. at p. 489.) Otherwise, the court

would have held the statute “an unreasonable limitation on the constitutional

powers of the appellate and supreme courts.” (Id. at p. 488.)

In Garrison and Shafter-Wasco, the courts preserved jurisdiction and

maintained the separation of powers by holding that time limits phrased in

mandatory terms were merely directory.28 In People v. Engram (2010) 50 Cal.4th

28 Courts in other states have held that deadlines on judicial decisionmaking

violate the separation of powers doctrine. (E.g., State v. Buser (2015) 302 Kan. 1,

8-9; In re Grady (Wis. 1984) 348 N.W.2d 559, 570; Coate v. Omholt (Mont. 1983)

662 P.2d 591, 593; Sands v. Albert Pike Motor Hotel (Ark. 1968) 434 S.W.2d 288,

291-292; State ex rel. Kostas v. Johnson (Ind. 1946) 69 N.E.2d 592, 595; Atchison,

T. & S. F. Ry. Co. v. Long (Okla. 1926) 251 P. 486, 489; Schario v. State (Ohio

1922) 138 N.E. 63, 64; see also, e.g., Resolute Ins. Co. v. Seventh Jud. Dist. Ct. of

Okl. Co., Okl. (W.D.Okla. 1971), 336 F.Supp. 497, 503; U.S. v. Brainer (D.Md.

1981) 515 F.Supp. 627, 636; Ryan, Rush to Judgment: A Constitutional Analysis

of Time Limits on Judicial Decisions (1997) 77 B.U. L.Rev. 761; but see State ex

rel. Emerald People’s Util. v. Joseph (Or. 1982) 640 P.2d 1011, 1014 [three-

month limit for deciding appeals “does not on its face necessarily ‘unduly burden

or unduly interfere with the judiciary in the exercise of its judicial functions’ ”].)

The California approach has the benefit of allowing time limits set by the

legislative branch to function as nonbinding guidelines, when reasonably possible.

(Footnote continued on next page.)

44

1131 (Engram) we examined the separation of powers problems posed by a statute

prescribing a mandatory calendar preference. A criminal prosecution had been

dismissed under the speedy trial statute (§ 1382) because no judge was available to

hear the case. The prosecutor challenged the dismissal, contending the preference

for criminal cases provided in section 1050 required the trial court to assign the

case to available courtrooms where juvenile, family law, and probate matters were

heard.29 (Engram, at pp. 1143-1144.)

The Engram court disagreed. “It is well established, in California and

elsewhere, that a court has both the inherent authority and responsibility to fairly

(Footnote continued from previous page.)

A similar construction of a mandatory limit as “directory” was applied in Waite v.

Burgess (Nev. 1952) 245 P.2d 994, 996.

29 At the time, section 1050, subdivision (a) provided: “The welfare of the

people of the State of California requires that all proceedings in criminal cases

shall be set for trial and heard and determined at the earliest possible time. To this

end, the Legislature finds that the criminal courts are becoming increasingly

congested with resulting adverse consequences to the welfare of the people and the

defendant. Excessive continuances contribute substantially to this congestion and

cause substantial hardship to victims and other witnesses. Continuances also lead

to longer periods of presentence confinement for those defendants in custody and

the concomitant overcrowding and increased expenses of local jails. It is therefore

recognized that the people, the defendant, and the victims and other witnesses

have the right to an expeditious disposition, and to that end it shall be the duty of

all courts and judicial officers and of all counsel, both for the prosecution and the

defense, to expedite these proceedings to the greatest degree that is consistent with

the ends of justice. In accordance with this policy, criminal cases shall be given

precedence over, and set for trial and heard without regard to the pendency of,

any civil matters or proceedings. In further accordance with this policy, death

penalty cases in which both the prosecution and the defense have informed the

court that they are prepared to proceed to trial shall be given precedence over, and

set for trial and heard without regard to the pendency of, other criminal cases and

any civil matters or proceedings, unless the court finds in the interest of justice

that it is not appropriate.” (Italics added; see Engram, supra, 50 Cal.4th at pp.

1150-1151.)

45

and efficiently administer all of the judicial proceedings that are pending before it,

and that one important element of a court’s inherent judicial authority in this

regard is ‘the power . . . to control the disposition of the causes on its docket with

economy of time and effort for itself, for counsel, and for litigants. How this can

best be done calls for the exercise of judgment, which must weigh competing

interests and maintain an even balance.’ (Landis v. North American Co. (1936)

299 U.S. 248, 254–255; see, e.g., Hays v. Superior Court (1940) 16 Cal.2d 260,

264 [‘There is nothing novel in the concept that a trial court has the power to

exercise a reasonable control over all proceedings connected with the litigation

before it. Such power necessarily exists as one of the inherent powers of the court

and such power should be exercised by the courts in order to insure the orderly

administration of justice.’]; Plachte v. Bancroft, Inc. (N.Y.App.Div. 1957) 161

N.Y.S.2d 892, 893 [‘It is ancient and undisputed law that courts have an inherent

power over the control of their calendars, and the disposition of business before

them, including the order in which disposition will be made of that business.’].)

As this court observed in Brydonjack [, supra,] 208 Cal. [at p. 442]: ‘Our courts

are set up by the Constitution without any special limitations; hence the courts

have and should maintain vigorously all the inherent and implied powers

necessary to properly and effectively function as a separate department in the

scheme of our state government.’ ” (Engram, supra, 50 Cal.4th at p. 1146.)

In Engram we acknowledged the Legislature’s power to enact rules of

procedure, but quoted Brydonjack for the fundamental limitation noted above:

“ ‘The sum total of this matter is that the legislature may put reasonable

restrictions upon constitutional functions of the courts provided they do not defeat

or materially impair the exercise of those functions.’ ” (Engram, supra, 50 Cal.4th

at p. 1147, quoting Brydonjack, supra, 208 Cal. at p. 444.) We discussed two

examples in which the courts refused to give mandatory effect to statutes requiring

46

a continuance of trial. In Lorraine v. McComb (1934) 220 Cal. 753, 754

(Lorraine), a statute provided that “the court shall postpone a trial” upon the

agreement of counsel. The requirement was held to be directory only, to avoid

impinging on the courts’ inherent authority to control the order of their business.

(Id. at pp. 756-757; see Engram, at pp. 1147-1148.) Similarly, in Thurmond v.

Superior Court (1967) 66 Cal.2d 836 (Thurmond), a statute declared that a trial or

hearing “shall be postponed” if an attorney were a member of the Legislature and

the Legislature were in session. (Id. at p. 838, fn. 2.) The court deemed this

provision directory, to protect the trial court’s discretion to control the order of its

business so as to safeguard the interests of all parties.30 (Id. at p. 839.) It noted

the “serious constitutional questions” that would otherwise arise under the

separation of powers doctrine. (Ibid.; see Engram, at pp. 1149-1150.)

The Engram court emphasized that under the terms of section 1050, the

trial preference granted to criminal cases was to be applied in accord with the

policy of “expedit[ing] these proceedings to the greatest degree that is consistent

with the ends of justice.” (Engram, supra, 50 Cal.4th at p. 1150.) It concluded

that, “particularly in light of the constitutional separation-of-powers considerations

set forth in the decisions in Lorraine, supra, 220 Cal. 753, and Thurmond, supra,

66 Cal.2d 836, we find it abundantly clear that the provisions of section 1050

cannot properly be interpreted to require a trial court completely to forgo or

abandon consideration of all civil cases or proceedings over an extended period of

time when the number of criminal cases filed and pursued to trial continually

30 The Engram court explained that the term “directory” is sometimes used to

describe statutes that prescribe no remedy for their violation, and sometimes, as in

Lorraine and Thurmond, simply to signify that a statute is directive or permissive

rather than mandatory. (Engram, supra, 50 Cal.4th at p. 1148, fn. 7.)

47

overwhelms the resources available to the court for the disposition of both

criminal and civil matters.” (Engram, at p. 1152.)

One more case merits consideration. Before the court in Verio Healthcare,

Inc. v. Superior Court (2016) 3 Cal.App.5th 1315 (Verio) were amendments to the

statutes reviewed in Thurmond, supra, 66 Cal.2d 836. The year after Thurmond

was decided, the Legislature amended Code of Civil Procedure sections 595 and

1054.1 to specify that a continuance was mandatory if an attorney is a member of

the Legislature and the Legislature is in session, unless the court determines that a

continuance would defeat or abridge a right to relief in specified proceedings

seeking provisional relief. (Verio, at p. 1327.) The Verio court observed that

while these forms of relief were discussed in Thurmond, the amendments “left out

this portion of the Thurmond opinion: ‘Situations other than those involving

provisional remedies may also arise in which a substantial existing right would be

defeated or abridged by extended continuances.’ (Thurmond, supra, 66 Cal.2d at

p. 839.)” (Verio, at p. 1329.)

Relying on Engram, Thurmond, and Lorraine, the Verio court held that

“[u]nless sections 595 and 1054.1, subdivision (b) are interpreted as directory,

they continue to infringe on the independence of the judiciary.” (Verio, supra, 3

Cal.App.5th at p. 1329.) The statutes did not include a qualification recognizing

the court’s obligation to conduct proceedings “in a manner that is consistent with

the ends of justice,” as in Engram, supra, 50 Cal.4th at p. 1151. “To the contrary,

with certain exceptions, sections 595 and 1054.1 explicitly describe the

continuance or extension of time as ‘mandatory.’ ” (Verio, at p. 1330.)

Nevertheless, Verio refused to give the statutes mandatory effect. “ [A]s we noted

above, the exceptions are directed entirely toward provisional relief and fail to

account for our high court’s conclusion that a mandatory lengthy stay may hamper

a court’s fundamental mandate even outside the context of provisional relief. We

48

conclude, therefore, that sections 595 and 1054.1 are unconstitutional to the extent

they purport to be mandatory, and should continue to be treated as directory,

subject to a trial court’s discretion as set forth in Thurmond.” (Ibid.)

Thus, our case law establishes that while the Legislature has broad

authority to regulate procedure, the constitutional separation of powers does not

permit statutory restrictions that would materially impair fair adjudication or

unduly restrict the courts’ ability to administer justice in an orderly fashion.

Repeatedly, for over 80 years, California courts have held that statutes may not be

given mandatory effect, despite mandatory phrasing, when strict enforcement

would create constitutional problems. Section 190.6 raises similar concerns. The

statute is framed in mandatory terms, and the voters were told in the ballot

materials that the five-year limit on the posttrial review process would be binding

and enforceable. On the other hand, both proponents and the Attorney General

contended at oral argument that the five-year limit should not be given mandatory

effect, but should instead be understood as largely aspirational. They urge that the

limit may be seen as providing a frame of reference for the initiative’s specific

reforms designed to expedite the review process.

Petitioner disagrees. He contends the enforcement provisions of section

190.6, subdivision (e) show that the review limit was meant to be mandatory. In

his view, a five-year limit on posttrial proceedings is not only impracticable, but

also invades the courts’ inherent authority to balance the matters before them in a

way that is fair to all litigants.

On balance, we conclude it is best to accept the Attorney General’s and

intervener’s concession that the five-year limit is not mandatory. We do so for

two reasons. First, regardless of how the ballot materials characterized the five-

year review limit, section 190.6, subdivision (e) provides no effective mechanism

to enforce the limit. It states: “The failure of the parties or of a court to comply

49

with the time limit in subdivision (b) shall not affect the validity of the judgment

or require dismissal of an appeal or habeas corpus petition. If a court fails to

comply without extraordinary and compelling reasons justifying the delay, either

party or any victim of the offense may seek relief by petition for writ of mandate.

The court in which the petition is filed shall act on it within 60 days of filing.

Paragraph (1) of subdivision (c) of Section 28 of Article I of the California

Constitution, regarding standing to enforce victims’ rights, applies to this

subdivision and subdivision (d).” (§ 190.6, subd. (e).)

Notably, the time limit for which section 190.6, subdivision (e) authorizes a

writ remedy is not the five-year limit on judicial review imposed by subdivision

(d). It is the briefing time limit provided in section 190.6, subdivision (b), which

states, as it long has, “in all cases in which a sentence of death has been imposed

on or after January 1, 1997, the opening appellate brief in the appeal to the State

Supreme Court shall be filed no later than seven months after the certification of

the record for completeness . . . or receipt by the appellant’s counsel of the

completed record, whichever is later, except for good cause.” Proponents assert

that section 190.6, subdivision (e)’s reference to subdivision (b) was a drafting

error. They claim they meant to refer to subdivision (d). But it is not clear that

the reference to subdivision (b) in subdivision (e) was merely a typographical

error. Well before Proposition 66 was adopted, section 190.6 provided that the

failure of the parties or the court to comply with the deadline for filing the opening

brief in the automatic appeal shall not affect the validity of the judgment.

Subdivision (e)’s reference to subdivision (b) continues that long-standing

provision.

In any event, it would be no solution to simply replace the letter “b” with

the letter “d” in section 190.6, subdivision (e). A party or victim would then be

authorized to “seek relief by petition for writ of mandate” “[i]f a court fails to

50

comply” with the requirement that “the state appeal and initial state habeas corpus

review” be completed within five years. (§ 190.6, subds. (d) & (e).) However,

serious problems would arise from such a provision. Section 190.6, subdivision

(e) contemplates relief by petition for writ of mandate if “a court fails to comply.”

(Italics added.) Yet no single court is in a position to comply with a

comprehensive five-year limit on the resolution of all posttrial proceedings in

capital cases. The review process includes both direct appeals to this court and

habeas corpus proceedings that begin in the trial court and advance to the courts of

appeal for appellate review. Meeting such a deadline requires the coordination of

efforts by multiple courts and other actors. This court as well as the superior

courts must appoint counsel. All three levels of the state courts must supervise

briefing schedules and decide the legal issues presented to them. Counsel on both

sides must meet their obligations to represent the interests of their clients in

competent and timely fashion. The Legislature must provide funding sufficient for

the superior courts to meet their greatly expanded responsibilities under

Proposition 66, and for this court and the courts of appeal to expedite review in

capital cases without neglecting the other matters before them. As we made clear

in Engram, supra, 50 Cal.4th at page 1146, courts have the “responsibility to fairly

and efficiently administer all of the judicial proceedings that are pending before

[them].” (Italics added.)

If there were any one court responsible for compliance with the five-year

review limit of section 190.6, subdivision (d), presumably it would be this court,

because the review process culminates here. But as a practical matter, writ relief

to require us to enforce the limit is unavailable, because there is no tribunal with

authority to issue a writ of mandate to this court. (See 2 Witkin, Cal. Procedure,

supra, Courts, § 337, p. 429; Code Civ. Proc., § 1085, subd. (a) [“A writ of

mandate may be issued by any court to any inferior tribunal . . .” (italics added)];

51

Modern Barber Col. v. Cal. Emp. Stab. Com. (1948) 31 Cal.2d 720, 730 (Modern

Barber); Davis v. Lansing (2d Cir. 1988) 851 F.2d 72, 74 [federal courts lack

jurisdiction to issue mandamus relief against state courts]; Robinson v. California

Bd. of Prison Terms (C.D.Cal. 1998) 997 F.Supp. 1303, 1308 [to the same effect,

citing cases].)

Furthermore, while writs of mandate may be issued to lower courts,

achievement of the five-year goal depends in large part on a variety of

discretionary determinations by superior courts and courts of appeal, most of

which would not be controllable by writ of mandate. It is settled that

“ ‘mandamus will not lie to control the discretion of a court or judicial officer or to

compel its exercise in a particular manner, except in those rare instances when

under the facts it can be legally exercised in but one way [citations].’ ” (City of

Torrance v. Superior Court (1976) 16 Cal.3d 195, 201-202, italics omitted; see 8

Witkin, Cal. Procedure, supra, Extraordinary Writs, § 99 et seq., p. 993 et seq.)

This limitation is fundamental, and implicit in the provisions of our state

Constitution governing writ jurisdiction. (Modern Barber, supra, 31 Cal.2d at p.

731.) For all these reasons, section 190.6, subdivision (e) provides no workable

means of enforcing the five-year review limit in subdivision (d).

As the concurring and dissenting opinion emphasizes, the ballot materials

suggested the five-year limit would be mandatory. However, nowhere were the

voters informed of the details of an enforcement mechanism. The materials

mentioned the availability of a court order, but did not explain how such an order

could effectively result in compliance. We recognize that the last sentence of

section 190.6, subdivision (e) indicates the standing provisions in article I, section

28 of the California Constitution would give victims a right to enforce the five-

52

year limit in subdivision (d).31 Nevertheless, the problems with reforming the

terms of section 190.6 to conform with the voters’ probable intent are

insurmountable, which is the second reason we are persuaded that the statute

cannot be given mandatory effect.

It would require extensive rewriting to create an operative enforcement

mechanism. Even if we undertook that task, any provision that would make the

five-year limit mandatory would pose serious separation of powers problems.

When we exercise our power of reformation, we do so in order to preserve a

statute’s constitutionality, not to threaten it. “[W]e have the authority to revise [a

statute] in a manner that avoids constitutional problems . . . .” (People v. Sandoval

(2007) 41 Cal.4th 825, 844, italics added.) “[N]umerous decisions of the United

States Supreme Court and lower federal courts and sister states, and numerous

decisions of this court, amply support the propriety of judicial reformation —

including ‘rewriting’ — of statutes to preserve constitutionality . . . .” (Kopp v.

Fair Pol. Practices Com. (1995) 11 Cal.4th 607, 626, italics added.) It has never

been our practice to rewrite a statute only to strike it down as unconstitutional.

The concurring and dissenting opinion argues at length that the voters

intended the five-year limit to be mandatory. We do not dispute that point.

However, it remains the case that section 190.6 lacks an effective enforcement

mechanism. And while the statute is phrased in mandatory terms, the same was

true of the statutes at issue in the cases we have discussed. (Engram, supra, 50

31 “A victim, the retained attorney of a victim, a lawful representative of the

victim, or the prosecuting attorney upon request of the victim, may enforce the

rights enumerated in subdivision (b) in any trial or appellate court with jurisdiction

over the case as a matter of right. The court shall act promptly on such a request.”

(Cal. Const., art. I, § 28, subd. (c)(1).) Subdivision (b)(9) of article I, section 28

entitles victims “[t]o a speedy trial and a prompt and final conclusion of the case

and any related post-judgment proceedings.”

53

Cal.4th at p. 1152, fn. 9; Thurmond, supra, 66 Cal.2d at p. 839; Garrison, supra,

32 Cal.2d at pp. 436-437; Lorraine, supra, 220 Cal. at p. 757; Shafter-Wasco,

supra, 55 Cal.App.2d at p. 488; Verio, supra, 3 Cal.App.5th at p. 1319.) The

concurring and dissenting opinion notes, as we have (fn. 28, ante), that other states

have invalidated statutes which violate the separation of powers by imposing strict

time limits. However, California courts have chosen a different approach to avoid

separation of powers problems. Rather than striking down statutes that might

unduly interfere with judicial functions, we construe them so as to maintain the

courts’ discretionary control. In Engram, for instance, we noted “the court in

Thurmond did not hold that the statutory provisions in question were invalid on

their face or were to be totally disregarded, but rather concluded that the statutes

should be applied in a manner that accorded reasonable discretion to the court to

safeguard the interests of all those before the court.” (Engram, at p. 1150.)

In the cases cited above, mandatory statutory terms were intended to

expedite proceedings or control docket management, but the courts declined to

infer a broader intent to infringe on inherent judicial authority. As the Verio court

put it, “we are not persuaded the Legislature intended to intrude on the right of the

courts ‘ “to control [their] order of business and to so conduct the same that the

rights of all suitors before them may be safeguarded. This power has been

recognized as judicial in its nature, and as being a necessary appendage to a court

organized to enforce rights and redress wrongs.” ’ ” (Verio, supra, 3 Cal.App.5th

at p. 1319, quoting Thurmond, supra, 66 Cal.2d at p. 839, and Lorraine, supra,

220 Cal. at p. 756.)

Following nine decades of precedent, we too decline to infer that

lawmakers intended strict adherence to a fixed deadline that would undermine the

courts’ authority as a separate branch of government. It is far from certain that the

voters contemplated such a result. Nothing in the Proposition 66 suggests that

54

short shrift should be given to the decisionmaking process, or that capital posttrial

review proceedings should dominate dockets to the point that other cases would be

left to languish. In the absence of clearer indications that this was the voters’

intent, we will not presume they meant to hamper the courts in the conduct of their

business. (See Engram, supra, 50 Cal.4th at pp. 1151-1152; Garrison, supra, 32

Cal.2d at p. 436.) Deciding cases and managing dockets are quintessentially core

judicial functions. They are grounded in the Constitution and may not be

materially impaired by statute. (Le Francois, supra, 35 Cal.4th at p. 1104;

Mendocino, supra, 13 Cal.4th at p. 54; Brydonjack, supra, 208 Cal. at p. 444.)

Accordingly, we conclude that the five-year review limit in section 190.6,

subdivision (d) is directive only. Its provision that the courts “shall complete the

state appeal and the initial state habeas corpus review in capital cases” within five

years is properly construed as an exhortation to the parties and the courts to handle

cases as expeditiously as is consistent with the fair and principled administration

of justice. (Ibid.; see Garrison, supra, 32 Cal.2d at pp. 435-436; Shafter-Wasco,

supra, 55 Cal.App.2d at p. 489.) As in Engram, Garrison, Thurmond, and

Lorraine, the term “shall” is not mandatory. (Engram, supra, 50 Cal.4th at pp.

1150-1152; Thurmond, supra, 66 Cal.2d at pp. 838-840; Garrison, at p. 437;

Lorraine, supra, 220 Cal. at pp. 754, 757; cf. Shafter-Wasco, at pp. 488-489.)

In Engram we read the terms of section 1050 requiring calendar preference

for criminal cases in light of the statute’s declared “policy of expediting criminal

cases ‘to the greatest degree that is consistent with the ends of justice.’ ” (Engram,

supra, 50 Cal.4th at p. 1151, quoting § 1050, subd. (a).) The provisions

establishing the preference were as facially mandatory as those of section 190.6,

subdivision (d), but we rejected a construction that would lead to a “rigid and

absolute rule.” (Engram, at p. 1161.) Likewise here, section 190.6, subdivision

(d) begins with a declaration that “[t]he right of victims of crime to a prompt and

55

final conclusion, as provided in paragraph (9) of subdivision (b) of Section 28 of

Article I of the California Constitution, includes the right to have judgments of

death carried out within a reasonable time.” (§ 190.6, subd. (d), italics added.)

This language makes it clear that the electorate did not intend to impose an

unreasonable limit. The five-year period may be understood to express the voters’

view of what would ordinarily constitute “a reasonable time” for completing

review proceedings. However, courts must make individualized decisions based

on the circumstances of each case. They retain discretion over the time required to

resolve particular matters, and over the management of their dockets.

Similar considerations apply to section 1509, subdivision (f)’s time limits

for superior court rulings on initial habeas corpus petitions. Petitioner offers little

argument supporting his challenge to this provision, but the Habeas Corpus

Resource Center, in an amicus curiae brief, contends the statute’s one and two-

year limits are too short for counsel and the courts to adequately perform their

functions.32 Again we observe that no issue is raised by this petition concerning

the infringement of an individual prisoner’s rights in a particular case. Such

claims remain open. Here we consider only the effect of the time limits on judicial

functions.

The limits in section 1509, subdivision (f) are plainly directory, under

Garrison, supra, 32 Cal.2d at page 436. No jurisdictional consequence is

provided if they are not met. Nor can these limits be deemed mandatory in any

other sense, despite the unconditional language in which they are stated. There is

32 The statute contemplates that an initial petition “shall [be] resolve[d] . . .

within one year of filing unless the court finds that a delay is necessary to resolve

a substantial claim of actual innocence, but in no instance shall the court take

longer than two years to resolve the petition.” (§ 1509, subd. (f).)

56

no provision for their enforcement. The ballot materials did not portray them as

rigid requirements. The Legislative Analyst explained that trial courts would

“generally . . . have one year to make a decision on the petition.” (Voter Guide,

supra, analysis of Prop. 66 by Legis. Analyst, p. 106.) The subject is not

mentioned in the arguments for and against the measure.

We note that section 1509, subdivision (f) begins with a provision calling

for proceedings to “be conducted as expeditiously as possible, consistent with a

fair adjudication.” (Italics added.) As in Engram, “the statute explicitly

recognizes a court’s fundamental and overriding obligation to administer the

proceedings that are pending before it in a manner that is consistent with the ends

of justice.” (Engram, supra, 50 Cal.4th at p. 1151.) Therefore, “the provision

cannot properly be interpreted as establishing an absolute or inflexible rule . . . in

total abrogation of a trial court’s ultimate control or discretion.” (Ibid.) If in a

particular case the time limits imposed by section 1509, subdivision (f) are not

“consistent with a fair adjudication,” as the statute requires, the voters signaled

that the interest of fairness must prevail. Moreover, as with section 190.6, nothing

in section 1509 suggests the voters contemplated that courts would neglect their

other business in order to comply with the time limits. Proposition 66 presumes

that the courts will have sufficient resources to manage their caseloads.

Our conclusion that the time limits in sections 190.6, subdivision (d) and

1509, subdivision (f) are merely directive does not empty them of meaning.33

33 Established separation of powers precedent requires us to give a saving

construction to the time limits in Proposition 66. However, we caution the drafters

of initiative measures against the inclusion of sweeping statutory language that is

inconsistent with constitutional norms. The voters should not be presented with

terms whose ordinary meaning conflicts with the Constitution. Although we

resolve doubts in favor of a proposition’s validity, we must nevertheless review

statutes adopted through the initiative process under generally applicable

(Footnote continued on next page.)

57

Legislated time limits can establish as a matter of policy that the proceedings they

govern should be given “as early a hearing and decision as orderly procedure . . .

will permit.” (Shafter-Wasco, supra, 55 Cal.App.2d at p. 489.) They may serve

as benchmarks to guide courts, if meeting the limits is reasonably possible. What

is reasonably possible, however, will depend on a variety of factors, both

structural and case-specific.

It remains to be seen how effective the procedures enacted by Proposition

66 will be in expediting the capital posttrial review process. The time limits

reflect the voters’ will, which we respect. However, they were presented to the

voters by the proponents of Proposition 66 without the benefit of hearings or

research exploring their feasibility or their impact on the rest of the courts’ work.

As the concurring opinion explains, these are issues of considerable complexity

and difficulty. The implementation of Proposition 66 will necessarily be an

ongoing process of exploration and adaptation. The Judicial Council is tasked

with monitoring the review process established by the initiative. (§ 190.6, subd.

(d).) Its supervision will shed light on the achievability and efficacy of the

measure’s extensive reforms.

Much depends on the funding made available by the Legislature. What

cannot be permitted is the material impairment of judicial functions by any statute.

The superior courts must be allowed to exercise their “ultimate control or

discretion over the order in which the cases pending before [them] should be

considered” (Engram, supra, 50 Cal.4th at p. 1151), and to give each case the time

(Footnote continued from previous page.)

constitutional standards. (Calfarm Ins. Co. v. Deukmejian, supra, 48 Cal.3d at pp.

814-815.)

58

required for reasoned decision. The courts of appeal may not be thwarted in the

exercise of their original jurisdiction to review superior court judgments in all the

cases brought before them. (Art. VI, § 11, subd. (a).) Nor may this court be

deprived of the ability to balance its responsibilities in capital cases with the other

important role we have performed since the creation of the intermediate appellate

courts: “[T]o supervise and control the opinions of the several district courts of

appeal, each of which is acting concurrently and independently of the others, and

by such supervision to endeavor to secure harmony and uniformity in the

decisions, their conformity to the settled rules and principles of law, a uniform rule

of decision throughout the state, a correct and uniform construction of the

constitution, statutes, and charters, and, in some instances, a final decision by the

court of last resort of some doubtful or disputed question of law.” (People v.

Davis (1905) 147 Cal. 346, 348; see Cal. Rules of Court, rule 8.500(b)(1).)

The Judicial Council, in drafting the “rules and standards of administration”

for carrying out Proposition 66’s reforms (§ 190.6, subd. (d)), must take care to

preserve the courts’ inherent authority over their dockets.

E. The Effective Date of Proposition 66

Proposition 66 declares that “all sections of this act take effect immediately

upon enactment.” (Prop. 66, § 19.) However, we stayed the implementation of

the measure pending our resolution of this matter. The effective date is a question

of some importance, particularly for the Judicial Council, which is tasked with

developing rules and standards “[w]ithin 18 months of the effective date.” (§

190.6, subd. (d).) We also deem it desirable for all parties affected by the

initiative measure to be allowed to strive for compliance in an efficient manner,

unencumbered by considerations of retroactive application upon the dissolution of

our stay. We have in the past exercised our inherent power of reformation to

revise the effective date of stayed legislation in order to avoid problems of

59

compliance with statutory deadlines. (California Redevelopment Assn. v.

Matosantos, supra, 53 Cal.4th at pp. 274-275.) We do the same here. The

effective date of Proposition 66 shall be the date our opinion becomes final.

Provisions related to the effective date are otherwise unchanged.

III. DISPOSITION

We discharge the order to show cause, and deny the amended and renewed

petition for a writ of mandate and injunctive relief.

CORRIGAN, A. C. J.

WE CONCUR:

WERDEGAR, J.

LIU, J.

KRUGER, J.

HOCH, J.*

_______________________________

* Associate Justice of the Court of Appeal, Third Appellate District, assigned

by the Chief Justice pursuant to article VI, section 6 of the California Constitution.

60

CONCURRING OPINION BY LIU, J.

Proposition 66 amended Penal Code section 190.6, subdivision (d) to say

that state death penalty appeals and habeas corpus proceedings must be completed

within five years. All members of the court agree that this provision imposes no

legally enforceable obligation. My colleagues disagree on how they reach this

conclusion: The court holds that the five-year provision is “directive” and not

mandatory (maj. opn., ante, at p. 55), whereas Justice Cuéllar’s concurring and

dissenting opinion contends that the provision is mandatory and unconstitutionally

intrudes on the prerogatives of the judicial branch (conc. & dis. opn., post, at

p. 22).

I believe both positions are reasonable. Like Justice Cuéllar, I find it

stunning that Proposition 66’s proponents and the Attorney General claim that the

voters intended the five-year limit to be nonbinding or aspirational when that

claim is plainly belied by the ballot materials and advocacy campaign for

Proposition 66. (Conc. & dis. opn., post, at pp. 2–3, 11–15.) However, the

electorate passed Proposition 66 against a backdrop of precedent construing

similar mandates as nonmandatory when necessary to save their constitutionality

(maj. opn., ante, at pp. 41–49), and we presume the electorate is “ ‘aware of

existing laws and judicial construction thereof’ ” (People v. Gonzales (2017) 2

Cal.5th 858, 869). Although I am unsure whether I would construe voter intent as

flexibly as our decisions have, I acknowledge this is one way of enforcing the

separation of powers and there is a lot of water over the dam in our case law. So,

although no one really disagrees that “the voters intended the five-year limit to be

mandatory” (maj. opn., ante, at p. 53), our precedent supports the court’s approach

of imputing to the voters a further intent not to unconstitutionally impair the

judicial function (id. at p. 55). All members of the court agree that if the five-year

limit were mandatory, it “would undermine the courts’ authority as a separate

branch of government.” (Id. at p. 54; conc. & dis. opn., post, at p. 27.)

I write separately to highlight that whether the five-year limit is directive or

unconstitutional, it does not and could not bind those charged with implementing

Proposition 66. It is clear that a majority of the 2016 electorate voted “to shorten

the time that the legal challenges to death sentences take.” (Voter Information

Guide, Gen. Elec. (Nov. 8, 2016), analysis of Prop. 66 by Legis. Analyst, p. 105

(2016 Voter Guide).) But Proposition 66 contains no plan to compress into five

years a process that often takes two decades, and no entity — not this court, not

the Judicial Council, not the Legislature — can simply wave a magic wand and

make it so. Although there may be ways to streamline the process, realistic

reforms must emanate from a clear understanding of the way the postconviction

death penalty process works in California. As explained below, the five-year limit

is not grounded in the realities of California’s death penalty process or in the

reasonable possibilities for reform. Thus, in addition to lacking strict

enforceability, the five-year limit cannot serve as a realistic benchmark to guide

courts or the Judicial Council as they implement Proposition 66. It is instead “an

exhortation to the parties and the courts to handle cases as expeditiously as is

consistent with the fair and principled administration of justice.” (Maj. opn., ante,

at p. 55.)

2

I.

Today there are nearly 750 prisoners on death row in California; they

comprise roughly a quarter of all condemned inmates in the United States. The

process for reviewing death judgments is complex and multilayered, and the

incidence of reversible error is significant. (See U.S. Dept. of Justice, Bur. of

Justice Statistics, Capital Punishment, 2013—Statistical Tables (2014) p. 19,

tbl. 16, available at https://www.bjs.gov/content/pub/pdf/cp13st.pdf [as of Aug.

24, 2017] [reporting that 38 percent of the 8,466 prisoners sentenced to death

between 1973 and 2013 had their convictions or sentences overturned]; Liebman

et al., Capital Attrition: Error Rates in Capital Cases, 1973–1995 (2000) 78 Tex.

L.Rev. 1839, 1850 [reporting that state and federal courts nationwide found

prejudicial error in 68 percent of capital cases between 1973 and 1995].)

In California, after a death judgment has been imposed in the trial court, the

defendant is entitled to an automatic appeal to review any errors that may have

occurred during trial. (Pen. Code, § 1239, subd. (b); all undesignated statutory

references are to this code.) The defendant is also entitled to file a petition for a

writ of habeas corpus to assert violations of statutory or constitutional rights not

apparent in the trial record. Habeas corpus petitions may be filed in state and

federal courts. (§ 1473; 28 U.S.C. § 2254.) Capital defendants are entitled to

counsel on direct appeal and in state habeas proceedings. (See Douglas v. People

of State of Cal. (1963) 372 U.S. 353, 355 [recognizing the constitutional right of

indigent criminal defendants to representation on appeal]; Gov. Code, § 68662.)

On average in California, it takes three to five years after a death judgment

to appoint appellate counsel. (Jones v. Chappell (C.D. Cal. 2014) 31 F.Supp.3d

1050, 1056 (Jones), revd. by Jones v. Davis (9th Cir. 2015) 806 F.3d 538.) In

April 2016, there were 49 capital defendants waiting for attorneys to be appointed

for direct appeals and 360 capital defendants waiting for attorneys to be appointed

3

for habeas corpus petitions. (2016 Voter Guide, supra, analysis of Prop. 66 by

Legis. Analyst, p. 105.) About half of those waiting for appointment of habeas

counsel have been waiting for over 10 years. (Jones, at p. 1058.) The dearth of

attorneys willing to take on these assignments is due in part to the sheer enormity

of the undertaking. A single death penalty case can and often does dominate a

lawyer’s practice for well more than a decade.

Direct appeals in this court are completed on average 11.7 to 13.7 years

after the death judgment. (Jones, supra, 31 F.Supp.3d at p. 1057.) Many appeals

take considerably more time. (See, e.g., People v. O’Malley (2016) 62 Cal.4th 944

[25 years from judgment of the death to resolution on appeal]; People v.

Cunningham (2015) 61 Cal.4th 609 [19 years]; People v. Brown (2014) 59 Cal.4th

86 [18 years].) State habeas review is completed on average more than 17 years

after the death judgment. (Jones, at p. 1059.) In April 2016, there were 337 direct

appeals and 263 state habeas corpus petitions pending in this court. (2016 Voter

Guide, supra, analysis of Prop. 66 by Legis. Analyst, p. 105.)

As of 2014, only 81 inmates out of the more than 900 sentenced to death in

California since 1978 have completed the postconviction review process in both

state and federal court. (Jones, supra, 31 F.Supp.3d at p. 1060.) Of those 81,

about half have received relief from their death sentences, 13 have been executed,

and 17 have had their executions stayed. (Id. at p. 1069.)

In 2008, the California Commission on the Fair Administration of Justice

(Commission) studied the death penalty postconviction process. (Cal. Com. on the

Fair Admin. of Justice, Final Report (2008) (Commission Report).) The

Commission was chaired by former Attorney General and Los Angeles District

Attorney John Van De Kamp, and it included law enforcement officials,

prosecutors, public defenders, and academics. The Commission held hearings and

gathered input from a broad cross-section of stakeholders. (Id. at p. 113.) The

4

Commission made several recommendations to expedite what was widely

regarded as a dysfunctional process. Recognizing that difficulties in appointing

appellate counsel were a major source of delay, the Commission concluded that

“[t]he most direct and efficient way to reduce the backlog of death row inmates

awaiting appointment of appellate counsel would be to again expand the Office of

the State Public Defender.” (Id. at p. 132.) The Commission recommended

increasing the State Public Defender’s budget by one-third. (Id. at p. 133.) In the

alternative, the Commission recommended increasing the compensation of private

appellate attorneys who take death penalty cases. (Id. at pp. 132–133.) To address

the even greater delays in appointing habeas counsel, the Commission

recommended expanding the Habeas Corpus Resource Center from 34 lawyers to

150 lawyers, which would have required a five-fold increase over the then-current

$14.9 million annual budget. (Id. at p. 135.) These recommendations were not

implemented.

The Commission also addressed the backlog of death penalty appeals

pending in this court. This court decides 20 to 25 death penalty appeals each year

and issues a published opinion in each case. It typically takes two to three years

for this court to decide an appeal once it has been fully briefed. (Commission

Report, at p. 147.) The Commission endorsed the proposal of then Chief Justice

Ronald George to amend the state Constitution so that this court would have

discretion to transfer fully briefed death penalty appeals to intermediate appellate

courts, provided that the Commission’s recommendations for appointing appellate

and habeas counsel were also implemented. (Commission Report, at pp. 147–

148.) This court also decides approximately 30 habeas corpus petitions each year;

although we do not typically issue published opinions in these cases, our

deliberative process includes the preparation of lengthy internal memoranda

carefully examining each issue raised in each petition. The Commission endorsed

5

a proposal to allow capital habeas corpus petitions to be filed in superior court,

with a right of appeal to the Court of Appeal and Supreme Court. (Id. at p. 148.)

In 2013, a coalition of law enforcement officers, prosecutors, and crime

victims proposed a ballot initiative, called the Death Penalty Reform and Savings

Act of 2014 (2014 Proposed Initiative), that was similar in many ways to

Proposition 66. The 2014 Proposed Initiative did not incorporate the

Commission’s proposals to expand the Office of the State Public Defender or the

Habeas Corpus Resource Center. But it did include some of the other Commission

recommendations. One of the Proposed Initiative’s key provisions was an

amendment of article VI, section 11, subdivision (a) of the California Constitution

to provide that Courts of Appeal have appellate jurisdiction over death penalty

cases, just as they have over other cases. (2014 Proposed Initiative, § 4.) Further,

the 2014 Proposed Initiative would have added a new section to article VI

authorizing this court to review Court of Appeal decisions in capital cases and to

summarily affirm if there are no errors affecting the judgment and there is no need

to secure uniformity of law or address an important question of law. (2014

Proposed Initiative, § 5.) Also consistent with the Commission’s

recommendations, the 2014 Proposed Initiative would have added section 1509,

subdivision (a), requiring that all habeas corpus petitions be transferred to the

court imposing the capital sentence unless good cause is shown. These changes

were intended to address one of the findings of the Proposed Initiative: “The

California Supreme Court is overloaded with death penalty appeals, causing

lengthy and unnecessary delays. Spreading these death penalty cases among the

Courts of Appeal (like the federal courts do) will allow the defendants’ claims to

be heard sooner. The Supreme Court has suggested a similar change. Experts

have concluded this change will save hundreds of millions of dollars.” (2014

Proposed Initiative, § 2(7).)

6

Moreover, the 2014 Proposed Initiative would have amended article I,

section 27 of the California Constitution to add a provision substantially similar to

section 190.6, subdivision (d) (section 190.6(d)) as amended by Proposition 66. It

would have provided that “[s]tate courts shall complete the state appeal and initial

state habeas corpus review” within five years after entry of judgment or after

adoption of Judicial Council rules to expedite the capital appeal process. (2014

Proposed Initiative, § 3.)

After some signature gathering, the initiative proponents decided to

postpone the effort until 2016. (Nirappili, Coalition Delays Initiative to Reform

State Executions, Mercury News (May 11, 2014) p. B4.) Proposition 66, the result

of that delayed effort, retains many of the features of the 2014 Proposed Initiative.

But the proponents abandoned any effort to amend the California Constitution.

(See Cal. Const., art. II, § 8, subd. (b) [requiring signatures equal to 8 percent of

the votes cast in the last gubernatorial election to place an initiative amending the

state Constitution on the ballot, but only 5 percent for a statutory initiative].) In

particular, Proposition 66 omitted the proposal to amend the state Constitution to

give Courts of Appeal jurisdiction over direct appeals in capital cases, and it

placed the five-year limit in a statute (section 190.6(d)) rather than in article I of

the Constitution. Proposition 66 also omitted the 2014 Proposed Initiative’s

finding that this court is overloaded with death penalty appeals, but it retained the

provision in section 1509, subdivision (a) to authorize transfer of capital habeas

petitions to the superior court.

Proposition 66 does not increase the availability of appellate and habeas

attorneys, beyond requiring this court to compel certain criminal appellate

attorneys to take death penalty appeals against their will. (§ 1239.1, subd. (b).) It

is unclear how effective this strategy will be in light of the shrinking and graying

pool of private appellate attorneys. (See Miller, Wanted: Appellate Lawyer. Pay:

7

$70/hr., The Recorder (June 15, 2006).) Although it is possible that compelling

appellate attorneys to take capital cases will increase the number of capital

appellate attorneys, it is also possible that this obligation will result in fewer

criminal appellate attorneys or will lead to the appointment of attorneys ill-suited

for the arduous and lengthy commitment required for a capital appeal.

Further, the new provision that this court “shall only grant extensions of

time for briefing for compelling or extraordinary reasons” (§ 1239.1, subd. (a))

may accelerate the filing of appellate briefs. But there are reasons why capital

briefs are lengthier — opening briefs of 300 to 500 pages, raising 30 to 40 claims,

are common — and often take several years to complete. Capital cases involve a

three-stage process in which the jury must determine (1) whether the defendant is

guilty of first degree murder, (2) whether certain special circumstances are

present, and (3) whether the defendant should receive the death penalty or a

sentence of life without the possibility of parole. (§§ 190.2, subd. (a), 190.3; see

e.g., People v. Masters (2016) 62 Cal.4th 1019, 1027–1041.) Each of these stages

may give rise to claims of legal error, and a labyrinth of procedural default and

forfeiture rules strongly incentivizes capital defendants to raise every conceivable

claim of error. (See, e.g., In re Robbins (1998) 18 Cal.4th 770, 780; In re Clark

(1993) 5 Cal.4th 750, 767–768; In re Waltreus (1965) 62 Cal.2d 218, 225; In re

Dixon (1953) 41 Cal.2d 756, 759; 28 U.S.C. § 2254(b)(1).) In addition, the record

in capital cases is usually massive, often comprising more than 5,000 pages of trial

transcript plus several thousand pages of exhibits, juror questionnaires, and

additional materials — all of which must be carefully reviewed. Moreover, the

irrevocable nature of the death penalty heightens the stakes and prompts appellate

attorneys to be as thorough and careful as possible in their briefing. Whatever the

statutory standard for granting extensions of time, attorneys must be given

sufficient time to complete their briefs.

8

Even if these measures do accelerate the filing of an appeal in this court,

Proposition 66, unlike the 2014 Proposed Initiative, does not increase the number

of courts hearing death penalty appeals. Because of the sheer scale of the briefing,

the enormity of the record, and the number of claims typically raised by each

defendant, this court devotes considerable time and attention to capital appeals.

We could increase the number of such appeals we resolve each year, but only at

the expense of noncapital cases. As the court today makes clear, Proposition 66

cannot override the constitutional doctrine of separation of powers and compel this

court to alter its docket by deciding more capital cases and fewer noncapital ones.

(Maj. opn., ante, at p. 55 [construing § 190.6(d) “to maintain the courts’

discretionary control over the conduct of their business”].)

Although transfer of capital habeas corpus petitions to the superior court

may expedite the adjudication of those petitions, superior courts asked to help

reduce this court’s substantial backlog of habeas corpus cases will likely require

additional resources to address petitions that are often as lengthy and time

consuming as direct appeals. (See, e.g., In re James David Beck (filed Nov. 28,

2012, S206945) [320-page petition for writ of habeas corpus with 12 claims,

numerous subclaims, and 18 volumes of exhibits].) It is unclear whether the

Legislature will appropriate funds for this purpose. Nor does Proposition 66

expedite the appointment of capital habeas attorneys. And the constitutionality of

Proposition 66’s restrictions on successive petitions (§ 1509, subd. (b)) has yet to

be fully tested. (Maj. opn., ante, at pp. 39–40.)

To put the postconviction process into perspective, let us consider a real

example. A case not far from the norm is that of Robert Mark Edwards. He was

convicted of first degree murder with burglary-murder and torture-murder special

circumstances, and he was sentenced to death in September 1998. Counsel was

appointed four years later in October 2002. Counsel filed a record correction

9

motion in October 2003. The record correction process was completed, and a

record of appeal filed in this court, in February 2005. The record consists of 29

volumes of the clerk’s transcript, with a total of 9,117 pages; this includes 6,597

pages of juror questionnaires. The reporter’s transcript, i.e., the transcript of the

trial, spans 39 volumes with a total of 5,957 pages. The opening brief (431 pages)

was filed in December 2006; the Attorney General’s brief (270 pages) was filed in

February 2008, and the reply brief (140 pages) was filed in November 2008. Also

in November 2008, counsel had to withdraw because he was being appointed to

the superior court. New counsel was appointed in January 2009 and, after getting

up to speed on the case, filed a 79-page supplemental brief in September 2010. A

supplemental respondent’s brief was filed in March 2011, and a supplemental

reply brief was filed in April 2011. Additional supplemental briefing was ordered

by this court in December 2012 to address recently decided cases of this court and

the United States Supreme Court; this briefing was filed in January 2013.

Altogether, the briefing raised some 38 issues. The case was argued in May 2013,

and the judgment was affirmed in August 2013. (People v. Edwards (2013) 57

Cal.4th 658.) Meanwhile, habeas corpus counsel was not appointed until

November 2010, 12 years after the death judgment. A 524-page habeas corpus

petition was filed in November 2013. The Attorney General’s 187-page informal

response was filed in October 2014, and a 433-page reply to the informal response

was filed in December 2015. The petition remains pending in this court.

In Edwards’s case, 19 years have passed since the judgment of death. The

direct appeal has been completed, the state habeas corpus petition has not been

decided, and the case has not yet begun its lengthy sojourn in federal court. It is

not clear how Proposition 66 would have appreciably accelerated the appointment

of appellate or habeas counsel, shortened the record correction process,

abbreviated the multiple rounds of briefing addressing numerous issues drawn

10

from a voluminous trial record, or reduced the amount of time the fully briefed

case was pending in this court.

In sum, the protracted nature of the postconviction death penalty process is

the product of several factors, including chronic delays in appointing appellate and

habeas counsel, limitations on funding for the Office of the State Public Defender

and Habeas Corpus Resource Center, the enormity of the record and the scale of

the parties’ briefing in light of the peculiar nature of the death penalty, and the fact

that all appeals go to a single court, inevitably resulting in a bottleneck.

II.

Section 190.6(d), as amended by Proposition 66, provides: “The right of

victims of crime to a prompt and final conclusion, as provided in paragraph (9) of

subdivision (b) of Section 28 of Article I of the California Constitution, includes

the right to have judgments of death carried out within a reasonable time. Within

18 months of the effective date of this initiative, the Judicial Council shall adopt

initial rules and standards of administration designed to expedite the processing of

capital appeals and state habeas corpus review. Within five years of the adoption

of the initial rules or the entry of judgment, whichever is later, the state courts

shall complete the state appeal and the initial state habeas corpus review in capital

cases. The Judicial Council shall continuously monitor the timeliness of review of

capital cases and shall amend the rules and standards as necessary to complete the

state appeal and initial state habeas corpus proceedings within the five-year period

provided in this subdivision.”

I agree that section 190.6(d), construed in light of our precedent, is

“directive.” (Maj. opn., ante, at p. 57.) But what does directive mean? Our case

law suggests that the answer depends on the nature of the statutory directive and

the judicial interest at stake.

11

In People v. Engram (2010) 50 Cal.4th 1131 (Engram), we addressed

section 1050, subdivision (a)’s language that “criminal cases shall be given

precedence over, and set for trial and heard without regard to the pendency of, any

civil matters or proceedings.” Based on the statutory context and history, we said

this provision “cannot properly be interpreted to require a trial court completely to

forgo or abandon consideration of all civil cases or proceedings over an extended

period of time when the number of criminal cases filed and pursued to trial

continually overwhelms the resources available to the court for the disposition of

both criminal and civil matters.” (Engram, at p. 1152.) We then went further to

reject the argument that the statute forbids the allocation of certain courtrooms or

judges exclusively to civil matters. (Id. at pp. 1153–1154.) We relied on case law

demonstrating that the statute was not intended to preclude a superior court from

maintaining separate departments handling civil and criminal matters in the

interest of efficiently organizing and adjudicating claims within its jurisdiction.

(Ibid.)

Thurmond v. Superior Court (1967) 66 Cal.2d 836 (Thurmond), a paternity

action, involved statutory provisions requiring the court to grant a continuance

when the attorney for one of the parties is a member of the Legislature and the

Legislature is in session. We held that the provisions “should be given full force

and effect wherever and whenever it may be done without unduly adversely

affecting the rights of others,” and we prescribed a number of factors the court

should consider in exercising its discretion as to whether a continuance should be

granted. (Id. at p. 840.)

In In re Shafter-Wasco Irr. Dist. (1942) 55 Cal.App.2d 484 (Shafter-

Wasco), the court declined to treat as mandatory a statutory deadline requiring

judicial resolution of an appeal concerning the dissolution of an irrigation district

to be decided three months after the appeal is filed. The court instead construed

12

the statute as directing the court “to give this appeal as early a hearing and

decision as orderly procedure in this court will permit.” (Id. at p. 489.)

In each of these cases, the court interpreted as “directive” a seemingly

mandatory statute that threatened to impair core judicial functions, and the

decisions make clear that courts have authority to determine the proper weight to

be given to the statutory directive. That determination is contextual. In some

cases, as in Thurmond, the directive statute can serve as a default that constrains

judicial discretion unless certain conditions apply. (Thurmond, supra, 66 Cal.2d at

p. 840.) In Engram, the force of the statute was more vague; we construed the

directive to give priority to criminal cases over civil cases as subject to the open-

ended condition that “such precedence [must be] consistent with the ends of

justice.” (Engram, supra, 50 Cal.4th at p. 1161.) And Shafter-Wasco, in

interpreting a statutory deadline as a directive “to give this appeal as early a

hearing and decision as orderly procedure in this court will permit” (Shafter-

Wasco, supra, 55 Cal.App.2d at p. 489), said it was ultimately up to the court to

determine a reasonable timeframe for deciding the appeal.

Directive statutes that set realistic time limits on judicial decisions may

inform how quickly cases should be decided, although the issue is ultimately left

to judicial discretion. But when a time limit purports to dictate what is not

“reasonably possible” to achieve (maj. opn., ante, at p. 58), it cannot serve as a

meaningful benchmark. Such is the case with the five-year time limit in section

190.6(d). The realities of California’s postconviction death penalty process mean

that without a radical reorganization of this court’s functions, a restructuring of the

role of lower courts beyond what Proposition 66 provides, and a significant

infusion of resources from the Legislature, the five-year time limit is not remotely

close to realistic.

13

This impracticality is underscored by the fact that section 190.6(d) says

nothing about how the five-year limit should be met. And this deficiency is

compounded by the fact that section 190.6(d) differs from other statutory

deadlines in terms of its scope: The five-year limit does not require one particular

court to meet a particular deadline in one particular proceeding; it is directed at a

complex judicial process involving multiple courts, multiple actors, and multiple

proceedings. (Maj. opn., ante, at p. 50.) The five-year deadline imposed on the

entire state death penalty postconviction process is so sweeping in its objective yet

so vague on the means of accomplishing the objective that it does not provide

useful guidance for those charged with implementing Proposition 66.

Section 190.6(d) purports to delegate the challenge of meeting the five-year

limit to the Judicial Council, which is supposed to “continuously monitor the

timeliness of review of capital cases and . . . amend the rules and standards as

necessary to complete the state appeal and initial state habeas corpus proceedings

within the five-year period provided in this subdivision.” But how is the Judicial

Council supposed to bring about the vast acceleration of the death penalty process

necessary to meet the five-year deadline? The Judicial Council has no authority to

direct the Legislature to appropriate more funds to expand the Office of the State

Public Defender or the Habeas Corpus Resource Center. It has no authority to

change the state Constitution to permit Courts of Appeal to hear death penalty

appeals. And it has no authority to require this court or any other court to devote a

greater proportion of its docket to death penalty cases at the expense of other cases

that fall within its constitutional responsibilities.

The delegation of broad rulemaking power to the Judicial Council spared

the voters (and the proponents of Proposition 66) from having to make difficult

choices as to what should be sacrificed for the sake of dramatically expediting the

death penalty. But these are precisely the choices that the lawmaking authority,

14

whether the Legislature or the electorate, must make with clarity, transparency,

and fidelity to separation-of-powers principles if it wishes to create a mandate that

can lawfully and practically guide the Judicial Council’s quasi-legislative

rulemaking. Such a mandate is lacking here.

Of course, section 190.6(d) is only one part of Proposition 66; the proponents

of Proposition 66 stated at oral argument that the five-year limit “is not the

centerpiece” of the initiative. Proposition 66 prescribes several specific reforms,

such as a new rule for granting extensions of time for briefing (§ 1239.1, subd. (a)),

new rules concerning appointment of counsel (id., subd. (b)), and a requirement that

initial habeas corpus petitions be filed in or transferred to the sentencing court

absent good cause (§ 1509, subds. (a), (g)) with either party having a right to take an

appeal to the Court of Appeal (§ 1509.1, subd. (a)). The Judicial Council may

prescribe rules to effectuate these provisions, and the efficacy of these measures in

expediting the death penalty process remains to be seen.

But whether Proposition 66 actually speeds up (or slows down) the process

will have nothing to do with section 190.6(d)’s unelaborated and unrealistic directive

that state death penalty appellate and habeas corpus proceedings “shall” be completed

within five years. The court properly acknowledges that this provision reflects the

voters’ desire to shorten the postconviction death penalty process. But the five-year

limit, construed as directive or simply unconstitutional, has no binding effect and

provides no guidance for responsible actors charged with the fair and efficient

administration of justice.

L

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